l^'i.rlK'^^ViJ^.-iy.  'i^tVi-;^>v 


'  '^i 


REFERENCE   LIBRARY 

..'EAU  OF  INDUSTRIAL  HOUSING  it  TRANSPORTATION 

MAY  2  2  1918 


George  Washington  Flowers~ 
Memorial  Collection 

DUKE  UNIVERSITY  LIBRARY 


ESTABLISHED  BY  THE 

FAM'LY  OF 

COLONE^   FI.OWF.RS 


ti.V^. 


REPORTS  OF  CASES  IN  EQUITY, 

AEGUED  AND  DETERMINED 


COURT  OF  APPEALS 

AND 

COURT  OF  ERRORS, 

OF 

SOUTH    CAROLINA, 

VOLUME  XI. 

FROM  MAY  TERM,  1850,  TO  MAY  TERM,  1800, 


UOTH    INXLVSIVE. 

BY  J.  S.  G.  RICHARDSON, 

STATK    REI'onTEU. 


CHARLESTON,  S.  C. : 
M  c  C  A  R  T  E  R    iSc     D  A  W  SON 

ISGl. 


'^ 


CHANCELLORS   AND  JUDGES 

DURING  THE  PERIOD  COMPRT^]D  IN  THIS  VOLUME. 


<' 


Chancellors  and  Judges  of  the  Equity  Court  of  Apjieals 
during  the  year  1859. 


HON.  JOB  JOHNSTON,  (6) 
"       BENJ.  F.  DUNKIN, 
"       GEO.  W.  DAllGAN,  (c) 


HON.  F.  H.  WARDLAW,  (J) 
"       JAMES  P.  CARROLL,  (rf) 
"       JOHN  A.  INGLIS.  {d) 


Circuit  Judges,  and  Judges  of  the  Law  Court  of  Appeals 
during  the  year  1859. 


HOlNr.  JOHN  B.  O'NEALL,  (a) 
"  DAVID  L.  WARDLAW, 
"       THOMAS  J.  AVITHERS, 


HON.  JOSEPH  N.  WHITNER, 
"  THOMAS  W.  (iLOVER, 
"       ROBERT  MUNRO. 


Judges  of  the  Court  of  Appeals,  established  by  Act  of  December,  1859. 

HON.  JOHN  B.  O'NEALL,  Chief  Justice. 
"       JOB  JOHNSTONE,  Associate  Judge. 
"        F.  H.  WARDLAW,  Associate  Judge. 


(ft)  Elected  Chief  Justice,  December,  IS.'iO. 
(t)  Elected  Associate  Judge,  December,  1859. 
(r)  Died  in  1859. 
(d)  Elected  December,  1859. 


/ 


TABLE    OF    CASES 

REPORTED     IN     THIS     VOLUME 


American  Bible  Society  vs.   Noble 156 

Wills  and  Testaments — Devises  to  Corporations. 
Anderson  r.9.  Aiken 232 

Mortgage — Fraud — Jurisdiction — Parties. 

Belcher  vs.  McKelvey 9 

Evidence — ,'insuier — Emancipation — Gift. 
Bryce  vs.  Bowers  and  Stork 41 

Pleading — Parties — 3  fort  gage — Foreclosure — Assignee — Pre- 
sumption— Payment. 

Culleton  vs.  Garrity 323 

Practice. 

Estate  of  Pinson .' 110 

Appeal  from  Ordinary — Duress. 
Ex  parte  Nayler  and  Smith 259 

Creditor's  Hill — Marshalling  Assets — Practice. 
Ex  parte  Wilson 445 

Lunacy — Practice. 

Farmer  vs.  Spell 541 

TPllls   and  Testaments — Administration — Debts — Equitable 
Conversion. 

Ford,  Escheator,  vs.  Porter 238 

Wills  and  Testaments — Emancipation — Slaves. 


vi  TABLE  OF  CASES. 

Fretwell  vs.  Neal 559 

ffli/s  and  Testainents — Executors — Estate  for  TAfe — Assent 
— Evidence — Judgmetit — Slieriff'  s  Sale — Purchaser  for  val- 
uable consideration  without  notice — Lapse  of  Time. 

Gillam  vs.   Caldwell  73 

Wills  and  Testaments — Limitation  of  Estates — Administralion. 

Glove r  vs.  Ad ams 264 

Limitation  of  Estates. 

Guignard    vs.   Harley 1 

Costs. 

Hodges  vs.  Hodges 135 

Mortgase — Delivery — Partnership — Interest — Surety — Joint 
Tenant — Use  and  Occupation. 

Howard   vs.  Cannon 23 

Injunction — Jurisdiction — Absent  Defendant —  United  States 
Court. 

Jewell  vs.  Jewell 296 

Parties — Account — Administration — Rents — Agent. 

Keith  vs.  Keith 83 

Promissory  Notes — Jurisdiction. 
Kirkpatrick  vs.  Atkinson 27 

Issue  at  Jaiw — New  Trial — Appeal — Incompetent  Evidence — 

Personal  Representative — Fraud — Limitation,  Statute  of. 

Kersey  vs.  Keith •. 33 

Pleadings — Limitations,  Statute  of — Husband  and  JVife. 

Lee  vs.  Lee 574 

Fraud — Statute  of  Frauds. 

Maffiit  vs.  Read 285 

Evidence — Settlement — Account. 
Markley  vs.  Singletary 393 

Limitation  of  Estates — Separate  Estate — Parties — Infant. 
Martin  us.  Campbell 205 

Evidence — Answer — Solicitor — Fee. 
Martin  vs.  Petit 416 

Usury. 


TABLE  OF  CASES.  vii 

McCorkle  vs.  Montgomery 1 14 

Fraud — Judgment — Father  and  Son — Consideration — Evi- 
dence—  J'endor's  Lien. 

Miles  vs.  Wise 536 

JuriMliclion — Injunction — Equitable  Estate. 

Moore r  vs.   Kopman 225 

Specific  Performance. 

O'Neale  vs.   Dunlap 405 

Parent  and  Child — Advancement — Guardian  and  Ward — 
Election — Heal  Estate — Intestates'  Estates — Acts  of  Leg- 
islature. 

Pegues  vs.  Pegues 554 

JVilk  and  Testaments — Legacy  to  Deceased  Child. 

Rees  vs.  Rees 86 

Testamentary  Paper — Advancements — Mother — Grandson. 

Schmidt  vs.  Lebby 329 

Partnership — Account  Stated. 

Sessions  vs.  Stevenson 282 

Presumption  of  Payment — Judgment — Aery — Sovereign  State. 

Smith  vs.  Hunt 269 

Trusts  and  Trustees — Implied  Trust — Lapse  of  Time — Com- 
mon Fund. 

State  Bank  vs.  Cox  &  Co 344 

Principal  and  Agent — Poiver  of  Attorney — Bank  Stock — 
Sale. 

State,  ex  rel.  Gervais,  c».  City  Council  of  Cliarieslon 432 

Nuisance— ^Public  Landing — Injunction — Evidence. 

Stokes  vs.  Hodges 135 

Mortgage — Delivery — Partnership — Interest — Surely — Joint 
Tenant — Use  and  Occupation. 

Tomlinson  vs.  Tomlinson 52 

Re-hearing. 
Toomer  r«.  Rhodes 256 

lAmitation  of  Estates — Practice. 


viii  TABLE  OF  CASES. 

Tucker  vs.  Belcher if 

Evidence — Answer — Emancipation — Gift. 

Willis  vs.  Jolliffe 447 

Wills  and  T'estaments — Slaves — Emancipation. 
Wilson  vs.  McJunkin ....527 

JFills  and  Testaments — Limitation  of  Estates. 


CASES    IN    EQUITY 

ARGUED    AXD    DETERMINED 

IN   THE  COURT  OF  APPEALS, 

At  Columbia,  May  Term,  1859. 


CHANCELLORS    PRESENT  :  ^ 

HON.  JOB  JOHNSTON,  HON.  B.   F.  DUNKIN, 

HON.   F.  II.  WARDLAW. 


J.   S.  GUIGNAKD  AND  OTHERS  VS.   W.  J.   HaRLEY  AND  OTHERS. 

Costs. 

Solicitors  and  Commissioners  in  Equity  are  not  entitled  to  charge  the  fees,  allow- 
ed  by  the  Act  of  1S27  for  '•  attending  on"  and  "  holding  reference,"  for  attend- 
ing before  the  commissioners  to  take,  and  for  taking,  under  the  .\ct  of  1S30, 
the  testimony  of  witnesses  to  be  nsed  at  the  trial  of  the  cause. 

Solicitors  are  entitled  to  the  fee,  allowed  by  the  Act  of  1S27  "  for  attending  on 
reference,''  for  attending  before  the  commissioner  nt  the  taxation  of  costs, 
only  where  the  taxation  has  been  referred  to  the  commissioner  by  an  order  of 
Court. 

The  fees  paid  by  a  solicitor  for  obtaining  a  copy  of  the  appeal  decree,  will  be  al- 
lowed liim  only  where  such  copy  is  necessary. 

The  solicitor  of  each  party  is  entitled  to  charge  for  his  argument  on  circuit,  and 
on  the  appeal. 

For  swearing  witnesses  examined  before  the  commissioner,  under  the  Act  of 
1S30,  he  is  entitled  to  charge  ;  but  the  charge  to  which  be  is  entitled,  is  not  $1 
for  each  witness,  but  $1  for  all  sworn  in  the  case. 

'Chancellor  Dargan  ill  and   unable  to  attend. 


APPEALS  IN  EaUlTY. 


Gtiignard  vs.  Harley. 


Where  the  commissioner  appoints  a  day  for  taking  the  examination  of  witnesses, 
under  the  Aft  of  1S30,  and  "causes  the  adverse  party  to  be  notified,"  for  such 
notice,  actually  given,  he  is  entitled  to  charge  as  for  a  summons. 

For  reporting  the  testimony  taken  under  the  Act  of  lb30,  the  commissioner  is 
not  entitled  to  the  charge  of  $3  allowed  by  the  Act  of  1S27,  for  '-making  up  and 
returning  report." 

Where  an  appeal  is  taken,  the  commissioner  may  charge  for  a  copy  of  the  decree 
furnished  the  solicitor  of  the  appellee. 

BEFORE  DUNKIN,  CIL,  AT  BARNWELL,  FEBRUARY,  1859. 

After  the  final  decision  of  this  cause  in  the  Appeal  Court, 
10  Rich.  Eq.,  253,  the  commissioner  for  Barnwell  taxed  the 
costs  of  the  defendants.  The  complainants  objected  to  the 
taxation,  and  in  September,  1S58,  his  Honor,  Chancellor 
Dargan,  made  an  order  directing  the  commissioner  for  Rich- 
land to  tax  the  costs.  In  December,  1858,  the  commissioner 
for  Richland  submitted  his  report,  to  which  the  complainants 
filed  exceptions,  which  were  heard  before  his  Honor,  Chan- 
cellor Dunkin,  at  Barnwell,  February,  1859.  His  Honor 
made  the  following  decree  : 

Dunkin,  Ch.  On  the  15th  September,  1858,  Chancellor 
Dargan  made  an  order,  directing  the  commissioner  in  equity 
for  Richland  district,  to  tax  the  costs  in  the  cause  above 
stated.  The  whole  amount  of  the  bill  of  costs  as  taxed  and 
allowed  by  Mr.  Commissioner  Pearson,  is  $986  13.  The 
items  to  which  objection  is  taken,  amount  to  $413.  The 
exceptions,  as  well  as  the  reasons  and  authorities  to  sustain 
them,  are  distinctly  set  forth  in  the  papers  which  make  part 
of  the  decree — the  declared  object  being,  not  merely  to  obtain 
justice  in  this  particular  case,  but  to  settle  the  practice  upon 
some  points  upon  which  a  diversity  of  opinion  exists  among 
the  profession,  and  a  variety  of  practice  prevails  in  different 
Equity  districts.  Entertaining  grave  doubts  upon  several  of 
the  points  ruled  by  the  commissioner  of  Richland  district,  it 
is  deemed,  nevertheless,  expedient,  for  the  purpose  of  having 
the  matters  subjected  to  the  judgment  of  the  tribunal  in  the 
last  resort,  to  overrule  the  several  exceptions  taken,  and  to 


APPEALS  IN  EaUITY. 


Columbia.  Mny,  1559. 


confirm  his  report,  M'hich  adopts  the  taxation  of  the  conmiis- 
sioner  of  Barnwell  district.  It  is  accordingly  so  ordered  and 
decreed. 

The  complainants  appealed. 
Bellinger,  for  appellants. 
,ililrich,  contra. 

The  opinion  of  the  Court  was  delivered  by 

Johnston,  Ch.  If  the  fees  provided  by  law  for  services  on 
the  part  of  officers  of  this  Court,  do  not  remunerate  them,  or  if 
there  is  an  omission  in  the  statutes  to  annex  compensation  to 
some  duties  to  be  performed,  though  the  temptation  may  be 
strong,  in  such  cases,  to  eke  out  the  compensation  by  resort- 
ing to  strained  construction,  the  Court,  though  it  cannot  be 
insensible  to  the  hardship  of  the  case,  is  solemnly  bound  to 
restrain  the  abuse.  There  is  no  compensation  allowed  inde- 
pendently of  that  which  is  provided  by  statute:  and  the 
party  laying  claim  to  costs  must  lay  his  finger  on  some  statu- 
tory provision,  expressly  or  by  necessary  implication,  allow- 
ing them. 

In  this  case  exception  is  taken  to  charges  by  the  solicitors 
tor  attending  before  the  commissioner  to  take  the  testimony; 
which  was  taken  under  the  statute  of  1S30,  6  Stat.,  41 1. 

The  statute  of  1827,  6  Stat.,  333,  expressly  declares,  "  That 
every  officer  herein  named,  shall  charge  and  receive,  for  the 
discharge  of  the  various  duties  of  his  office,  the  fees  hereinafter 
particularly  recited,  and  no  others  :  and  that  for  all  services 
not  hereinafter  specifically  recited,  the  said  officers  shall  )iot 
be  entitled  to  any  fee,  but  the  said  services, so  omitted  in  this 
Act,  shall  be  taken  and  understood  as  incidental  to  others  for 
which  fees  are  charged;"  and  "  That  all  Acts,  or  parts  of 
Acts,  in  relation  to  fees  of  any  of  the  officers  hereinafter 
named,  be,  and  the  same  are  hereby,  repealed  ;  and  that  this 
Act  shall  be  taken  and  considered  as  the  only  Act  in  force  in 
relation  to  the  fees  of  the  officers  hereinafter  recited." 


APPEALS  IN  EaUlTY. 


Guignard  vx.  Harley. 


The  only  items  in  this  fee-bill,  relied  on  to  sustain  the 
charge  of  the  solicitors  in  this  case,  are  the  following: 
"complainants'  solicitors" — "each  day  attending  before 
commissioner,  on  reference,  five  dollars" — and,  "  defend- 
ants' solicitors" — "each  day's  attendance,  on  reference,  be- 
fore commissioner,  five  dollars." 

Was  the  proceeding  under  the  Act  of  1830,  a  reference,  in 
the  sense  of  the  Act  of  1S27? 

That  Act,  6  Stat.,  411,  provides,  that  either  party  to  a  suit 
in  equity,  shall  have  the  right,  upon  giving  the  adverse  party, 
his  solicitor  or  agent,  ten  days'  notice,  to  examine  any  wit- 
ness, or  witnesses,  before  the  master  or  commissioner  in 
equity  of  the  district;  whose  duty  it  shall  be,  upon  the  appli- 
cation of  the  party,  desiring  the  examination,  his  solicitor  or 
ao'ent,  to  issue  a  writ  of  subpoena  for  such  witnesses;  and 
upon  iheir  coming  before  him,  to  commit  their  testimony, 
given  on  oath,  to  writing,  each  party  having  the  right  of 
cross-examination  and  exception  to  the  admissibility  of  testi- 
mony :  and  the  master,  or  commissioner,  shall  certify  such 
examination  and  testimony  to  the  Court,  to  be  read  in  evi- 
dence upon  the  trial;  and,  for  this  service,  he  shall  be  paid 
by  the  copy-sheet. 

It  may  be  convenient  here  to  proceed  with  the  further  pro- 
visions of  this  statute,  so  far  as  it  may  be  apj)lied  to  this 
case.  It  further  enacts,  thafe  on  an  application  by  a  party  to 
examine  witnesses,  the  master,  or  commissioner,  shall  appoint 
a  day  for  the  purpose,  and  cause  the  adverse  party  to  be  noti- 
fied." 

The  Court  perceives  no  feature  of  a  reference  in  such  pro- 
ceeduig;  and,  therefore,  cannot  sustain  the  solicitors'  charges 
for  attending  on  a  reference.  There  may  be,  and  is,  much 
difficulty  in  defining  the  meaning  of  this  term.  But  in 
theory  of  law,  it  always  implies  that  the  matter  referred  has 
been  before  the  Court,  and  comes  from  the  Court  to  its  com- 
missioner: and  this  is  the  true  idea,  even  in  cases  where  the 


APPEALS  IN  EaUlTY 


Columbia,  May,  1S59. 


Legislature  has  authorized  the  commissioner  to  grant  orders 
of  reference.     He  grants  them  in  the  place  of  the  Court. 

It  would  never  enter  into  the  mind  of  any  one,  witnessing 
the  examination  of  witnesses  on  a  trial  in  Court,  that  the  pro- 
ceeding constituted  a  reference.  Neither  does  the  examina- 
tion of  them  out  of  Court  and  before  the  commissioner, 
unless  some  matter  has  been  referred  to  the  commissioner,  as 
the  subject  of  the  examination  ;  such  as  to  inquire  into  cer- 
tain facts,  or  points  of  inquiry,  and  report  the  result,  with 
the  testimony,  &c. 

I  should  say,  that  were  the  Court  to  order  the  commis- 
sioner to  take  the  testimony,  generally,  in  a  cause,  prepara- 
tory to  a  iieari ng,  this  would  no  more  be  a  reference,  as 
understood  in  the  practice  of  this  Court,  than  an  examination 
by  other  persons  under  a  commission. 

The  Legislature  has,  in  the  Act  of  1830,  directed  the  mode 
in  which  testimony  may  be  taken,  and  constituted  the  com- 
missioner an  agent  to  take  it,  as  it  might  have  constituted 
the  sheriff,  ordinary,  or  any  other  officer  or  person.  Tliis  is 
the  scope  of  the  Act :  and,  though  it  would  have  been  very 
proper,  to  have  provided  compensation  to  solicitors  in  sucii 
case,  tliis  case  does  not  fall  within  the  provision  upon  which 
they  rely.     The  objection  is,  therefore,  sustained. 

Another  charge  of  solicitors  objected  to,  is  attendance  upon 
"  a  reference  to  tax  costs."  This  relates  to  the  taxation  of 
costs  by  the  commissioner  of  Barnwell.  The  parties  by  soli- 
citor, laid  before  him  their  bill  of  costs,  and  supported  them 
against  objection.  But  this  was  no  reference,  and  the  solici- 
tors are  not  entitled  to  the  charge. 

It  is  different  under  the  order  of  Chancellor  Dargan,  refer- 
ring these  matters  to  the  commissioner  of  Richland.  This 
was  a  reference  in  its  pro])er  sense;  and  the  charge  is  proper. 

This  objection  is,  therefore,  sustained  as  to  the  original  tax- 
ation by  the  commissioner  of  Barnwell  ;  but  overruled  as  it 
relates  to  the  investigation  before  tlie  commissioner  of  Rich- 


land. 


APPEALS  IN  EaUITY. 


Gnigiiard  vs.  Harley. 


Another  objection  is  to  charges  for  amount  paid  for  copies 
of  the  opinion  of  tlie  Court  of  Appeals.  In  Pinchback  vs. 
McCraven,  I  Hill  Ch.,  413,  it  was  held  that  a  ciiarge  for 
money  expended  for  a  copy  of  an  appeal  opinion,  when 
such  opinion  was  necessary  to  the  party  who  got  it,  was 
allowable.  In  that  case,  the  necessity  for  the  coj)y  arose  out 
of  peculiar  circumstances.  In  this  case,  the  bill  was  dis- 
missed on  circuit,  and  upon  appeal  the  decree  was  affirmed. 
In  general,  such  opinion  could  be  valuable  to  the  party 
who  procured  it,  only  for  its  reasoning;  or  to  guide  that 
party  in  some  niterior  proceeding.  But  it  might,  possibly,  be 
of  use,  in  defining  and  explaining,  the  circuit  judgment: 
and  should,  for  such  purpose,  be  filed  in  the  Circuit  Court  as 
part  of  the  record.  Of  course,  when  that  would  be  proper, 
only  one  copy  would  be  necessary. 

With  these  instructions,  the  point  must  be  recommitted. 
If  a  copy  was  necessary,  is  should  be  allowed — not  as  costs 
te>  counsel,  but  as  expenses.  Unless  a  copy  was  necessary,  it 
would  have  been  sufficient  to  file  the  certificate  of  the  clerk 
of  the  Appeal  Court,  of  the  result,  which,  by  the  Act  of  1832, 
7  Stat.,  332,  §  vi,  that  officer  is  bound  to  transmit  free  of 
charge. 

Another  objection  is,  to  charge  of  counsel  for  arguments  in 
the  Circuit  and  Appeal  Courts.  It  is  not  necessary  to  discuss 
a  matter  so  plain.  The  fee-bill  of  1827,  expressly  allows  the 
charge  made.  The  arguments  were  made,  and  were  made 
in  conformity  to  the  regular  and  settled  practi  e  of  the  Courts 
111  which  the  matter  was  adjudicated.  If  more  than  the 
proper  number  of  counsel  was  heard  —  which  was  not  the 
case — or  if  counsel  were  heard,  who  were  not  entitled  to  be 
heard,  the  point  was  open  for  objection  at  the  time;  and  we 
have  a  right  to  suppose,  if  no  objection  was  made,  the  pro- 
ceeding was  not  objectionable;  or  was  allowed  by  consent  of 
the  party  now  objecting.     This  objection  is  overruled. 

So  far  for  the  solicitors.  We  come  now  to  the  fees  of  tlie 
commissioner. 


APPEALS  IN  EaUlTY. 


Columbia,  May,  lS5f>. 


The  firsJt  charge  objected  to,  is  for  "seventeen  days  engaged 
in  reference  to  taice  testimony." 

It  has  been  already  decided  that  diis  was  no  reference ;  and 
the  charge  is  not  allowable  on  that  ground.  The  objection  is, 
therefore,  snstaincd. 

The  next  charge  objected  to  is,  "witnesses  each  day  sworn, 
^17."  That  is  ^1  per  day  for  swearing  witnesses  on  the 
"  reference"  to  take  testimony,  which  lasted  seventeen  days. 

The  Act  of  1827  allows  the  commissioner  for  "swearing 
all  the  witnesses  on  reference  before  him,  or  on  trial  in  conrt, 
$1."  Tlie  charge  mnst,  therefore,  be  cnt  down  to  $1  ;  and 
to  that  extent  the  objection  is  sustained.  It  has  been  con- 
tended, indeed,  that  as  this  was  a  proceeding  under  the  Act 
of  1830,  even  this  sum  should  not  be  allowed.  The  argu- 
ment is  based  upon  the  declaration  of  that  Act,  that  "for  this 
service  the  said  master  or  commissioner  shall  he  paid  by  the 
copy-sheet ;"  from  which  it  has  been  inferred  that  this  pro- 
vision is  intended  as  a  compensation  for  all  the  services  ren- 
dered b)^  commissioners  under  that  Act.  But  the  collocation 
of  the  words  of  the  statute,  as  well  as  the  apportionnient  of 
the  compensation  to  the  writing  done,  shows  that  the  provi- 
sion was  intended  to  be  confined  to  the  duty  of  "certifying 
such  examination  and  testimony  to  the  Court,  to  be  read  in 
evidence  on  the  trial  of  tlie  cause:"  for  which  "  service  the 
said  master,  or  commissioner,  shall  be  paid  by  the  copy- 
sheet." 

The  next  objection  is  to  the  charge  of  "eighty-seven  sum- 
mons, at  thirty-seven  and  a  half  cents  each,  ^32  62." 

The  Act  of  1830,  in  its  second  section,  makes  it  the  duty 
of  the  commissioner,  on  the  application  of  a  party  to  examine 
his  witnesses,  to  appoint  a  day,  and  "cause  the  adverse  party 
to  be  notified."  This,  I  suppose,  is  to  l)e  done  by  issuing  a 
summons,  to  be  lodged  by  the  applying  party  with  the  sheriff 
to  be  served.  This  service  does  not  come  within  that  for 
which  he  is  to  be  paid  by  the  copy-sheet.  The  Act  of  1827 
allows   him,  "for  every   summons,  thirty-seven  and  a  half 


APPEALS  IN  EaUITY. 


Guignard  vs.  Harley. 


cents."  This  would  seem  to  be  a  sufficient  warrant  f^r  sum- 
moning the  adverse  party,  in  this  case;  but  as  tiiere  were  not 
eighty-seven  adverse  parties,  it  seems  hardly  possible  to  sus- 
tain this  charge  for  the  full  amount.  It  has  been  argued  that 
as  the  "references"  were  continued  from  day  to  day,  for 
seventeen  days,  the  commissioner  was  obliged  to  summon 
the  parties,  whom  the  Act  requires  him  to  notify,  from  day  to 
day;  and  so  such  parties  might  be  summoned  several  times. 
That  depends  on  circumstances.  If,  at  an  adjournment,  no 
day  could  be  appointed  for  the  next  meeting,  and  the  com- 
missioner was  compelled  to  issue  his  summons  for  that  pur- 
pose, and  did  issue  it,  (for  charges  are  not  intended  for 
services  not  rendered,)  such  charge  is  allowable.  Otherwise 
it  cannot  be  sustained.  This  point  will  be  left  for  investiga- 
tion when  the  report  is  recommitted. 

The  next  objection  is  to  the  charge  for  "  reporting  testi- 
mony, $3." 

This  service  is  included  in  the  provision  of  the  statute 
of  1830,  to  be  compensated  by  copy-sheet ;  and  the  objection 
is  sustained. 

The  last  objection  is  to  a  charge  "  for  copying  circuit 
decree,"  $5  37.  When  the  bill  was  dismissed,  and  an 
appeal  was  taken,  this  copy  was  called  for  by  appellee's 
counsel.  {Pinchback  vs.  McCraven,  1  Hill  Ch.,  413.)  It  would 
seem  to  be  necessary  for  liiin,  in  order  to  prepare  himself  to 
sustain  the  decree.     The  objection  is  overruled. 

It  is  ordered  that  the  decree  be  modified  according  to  the 
foregoing  opinion ;  and  let  the  cause  be  remanded  to  the 
circuit,  and  the  report  be  recommitted  to  Mr.  Commissioner 
Pearson. 


DuNKiN  AND  Wardlaw,  CC,  coucurrcd. 
Decree  modified. 


APPEALS  IN  EaUITY. 


Columbia,  May,  1S59. 


W.  W.  Belcher  vs.  Hugh  McKelvey,  Administrator. 
Peter  Tucker  and  others  vs.  W.  W.  Belcher  and  others. 

Evidence — %^nsiver — Emancipation — Gift. 

Bill  by  the  next  of  kin  of  donor  lo  set  aside  a  bill  of  sale  of  a  slave,  expressed 
10  have  been  made  in  consideration  of  $1,000  paid,  on  the  ground  that  the  sale 
was  made  in  contravention  of  the  Act  of  1841  against  emancipation,  and 
alleging  th&t  the  money  paid  was  the  donor's  own  money,  being  the  earnings 
of  the  slave,  and  that  there  was  a  secret  trust  that  the  slave  should  be  emanci- 
pated ;  Held,  That  the  answer  of  defendant  denying  the  trust,  and  averring 
that  the  money  paid  was  his  own  money  and  not  the  earnings  of  the  slave,  was 
responsive  and  self-proving;  and,  the  evidence  being  insufficient  to  overthrow 
the  answer,  the  validity  of  the  bill  of  sale  was  sustained. 

Where  a  gift  of  slaves  is  made  by  the  donor,  in  contravention  of  the  Act  of  ISll 
against  emancipation,  the  gift  is  void  wlielher  the  purpose  of  the  donor  is  com- 
municated lo  the  donee  or  not. 

BEFORK  WARDLAVV,  CH.,  AT   LAURENS,  JUNE.  1S59. 

This  rase  will  be  understood  from  the  circuit  decree,  and 
the  opinion  delivered  in  the  Court  of  Appeals. 

The  circuit  decree  is  as  follows: 

Wardlaw,  Ch.  Robert  Tucker,  late  of  Laurens  district, 
died  April  19,  1855,  leaving,  as  his  next  of  kin,  a  brother, 
Peter  Tucker,  of  Alabama,  and  many  nephews  and  nieces, 
most  of  whom  are  absent  from  the  State.  On  April  24,  1854, 
said  R.  Tucker  executed  a  bill  of  sale  of  one  of  his  slaves 
named  George,  to  W.  W.  Belcher,  of  Abbeville,  reciting  a 
consideration  of  .$  1,000,  and  warranting  the  title  and  sound- 
ness of  the  chattel;  and,  on  June  13,  1854,  he  executed  a 
|iaper,  purporting  to  be  his  last  will  and  testament,  whereby 
he  attempted  to  bestow  his  whole  estate,  real  and  personal, 


10  APPEALS  IN  EQUITY. 

Belcher  vs.  McKelvey. 

upon  the  said  Belcher;  and,  on  the  day  last  mentioned,  he 
also  executed  a  bill  of  sale  of  all  the  slaves  remaining  in  his 
possession,  namely:  Ben,  Bird,  Nancy,  Jenny,  Letty,  Jane 
and  her  infant  child,  absolutely  to  said  Belcher,  after  reserv- 
ing to  himself  the  use  for  life,  for  the  consideration  professed 
of  love,  good  will  and  affection  towards  his  friend  l^elcher, 
and  of  |50  received  frotn  him.  After  the  death  of  Tucker, 
an  attempt  was  made  to  prove  his  will  and  testament  in  due 
form  of  law;  but  it  was  set  aside  as  a  testament  by  the  ordi- 
nary, and,  on  appeal  to  the  Common  Pleas,  by  the  verdict  of 
a  jury,  affirmed  by  the  Law  Court  of  Appeals.  Hugh  Mc- 
Kelvey became  administrator  of  the  goods  and  credits  of  said 
deceased,  and  was  proceeding  to  sell  tlie  slaves  named  in  the 
bill  of  sale  of  June  13,  1854,  under  the  order  of  the  ordinary, 
when,  on  December  14,  1855,  the  former  bill  in  the  caption 
was  filed  for  injunction  of  the  sale  and  for  general  relief;  and, 
on  the  ex  parte  ap|)lication  of  the  plaintiff,  an  injunction  was 
granted  by  a  Chancellor  at  Chambers.  Afterwards,  the 
second  bill  in  the  caption  was  filed  by  some  of  the  next  of 
kin  of  the  deceased  against  the  other  next  of  kin  and 
Belcher,  for  partition  of  some  real  estate  of  which  R.  Tucker 
was  seized  at  his  death,  and  for  having  declared  void  both  of 
the  bills  of  sale  aforesaid,  as  executed  through  undue  influ- 
ence, and  in  violation  of  the  provisions  of  the  Act  of  1841  to 
prevent  emancipation,  &c.     11  Stat.,  154. 

Defendant  Belcher  objects  to  the  second  bill  on  the  score  of 
multifariousness,  as  he  is  impleaded  concerning  the  partition 
of  the  land,  in  which,  on  the  showing  of  the  plaintiffs,  he  has 
no  interest;  but  plaintiffs  were  right  in  impleading  him  as  to 
this  matter,  to  ascertain,  in  disembarrassment  of  their  title, 
whether  he  set  up  any  claim  as  devisee.  He  does  so  claim  ; 
and  it  is  plain  that  an  issue  in  the  Court  of  Law  must  be 
ordered  to  determine  this  controversy,  which  has  not  been 
determined  by  the  refusal  of  the  ordinary  to  admit  the  testa- 
ment to  probate,  although  affirmed  by  the  Court  of  Law,  and 
which  cannot  be  adjudged  in  this  Court.      Crosland  vs.  Mur- 


APPEALS  li\  EaUlTY.  11 


Columbia,  May,  1850. 


dock,  4  McC,  217  ;  Tygart,  vs.  Peeples,  9  Rich.  Eq.,  46.  As 
this  point  must  remain  open,  it  is  desirable,  on  the  points 
which  are  within  the  cognizance  of  this  Court,  dependent  on 
a  common  state  of  facts,  to  avoid  comments,  so  far  as  practi- 
cable, which  may  be  prejudicial  to  either  party. 

Certain  facts  of  the  case  are  proved  to  my  satisfaction,  and 
generally  are  undisputed.  When  the  bills  of  sale  were  exe- 
cuted, Robert  Tucker  was  about  eighty  years  of  age,  alio- 
gether  unlettered,  and  of  a  mind,  originally  feeble,  impaired 
by  age  and  disease.  He  labored  under  the  delusion  of  being 
bewitched;  and,  when  he  led  conversation,  he  commonly 
talked  of  bugs  and  lizzards  running  under  the  skin  of  his 
legs,  asking  his  companions  if  they  did  not  see  the  vermin. 
His  neighbors  dealt  with  him  in  small  matters  of  trade,  but 
usually  through  the  agency  and  under  the  supervision  of 
some  of  his  slaves.  He  spoke  rationally  about  the  weather 
and  the  like  topics,  but  was  incapable  of  extended  reasoning. 
He  usually  asked  high  prices  when  lie  wished  to  sell,  and 
offered  low  prices  when  he  wished  to  buy;  and,  in  his  small 
purchases  from  merchants,  he  asked  for  the  articles  of  mer- 
chandise, but  one  of  his  slaves,  generally  George,  would 
make  the  selection.  He  was  unmarried,  and  excessively  fond 
of  his  slaves  and  indulgent  to  them  ;  indeed,  they  fared  better 
than  he  did  himself.  Some  of  his  relations,  as  Mrs.  McKelvey 
and  John  T.  Beaufort,  were  kind  to  him,  and  were  treated 
affectionately  by  him,  but  he  supposed  he  could  give  shares 
of  his  estate  to  these  only  in  common  with  the  rest  of  his 
kin;  and  from  most  of  the  latter  he  was  estranged,  supposing 
that  they  envied  his  pecuniary  condition,  and  waited  greedily 
for  his  death.  His  slaves,  especially  George,  had  great  influ- 
ence over  him,  and  he  anxiously  desired  iheir  emancipation 
at  his  death.  Of  defendant  Belcher,  he  knew  nothing  what- 
ever by  personal  intercourse — although  he  designates  him  as 
his  friend  —  except  from  the  representations  of  George,  in 
these  particulars  apparently  truthful,  that  Belcher  was  a 
bachelor,  a  clever  man,  and  the  kind   master  of  many  slaves. 


12  APPEALS  IN  EaUITY. 

Belcher  vs.  McKelvev- 
I 

George  was  a  cabinet-maker,  and  had  worked  at  his  trade 
for  some  years  in  the  neighborhood  of  defendant,  Belcher, 
and  had  there  taken  as  a  wife  a  woman,  Rachel,  belonging  to 
Williamson  Norwood  in  his  lifetime.  George  was  shrewd 
and  intelligent,  had  been  taught  to  read  well,  and  he  enjoyed 
the  confidence  of  his  master,  Tucker.  On  April  24,  1854,  he 
drove  his  master  in  a  carryall  to  the  house  of  W.  Blakely, 
Jr.,  and  producing  the  hill  of  sale  of  that  date,  in  Belcher's 
handwriting,  and  $900  in  bank  bills,  and  Tucker  acknowl- 
edging the  previous  payment  of  $100  to  him  by  George, 
Blakely  attested  as  a  witness  the  mark  of  Tucker  to  the  bill 
of  sale,  and  then  delivered  it  to  George.  At  the  time,  George 
said  that  $700  of  the  money  belonged  to  himself,  and  that  he 
had  borrowed  $200  from  Belcher,  and  thereupon  Tucker 
returned  $200  to  be  repaid  to  Belcher,  and  Blakely,  as 
Tucker's  agent,  took  possession  of  $700.  About  a  week  after- 
wards, John  Johnson  also  attested  the  bill  of  sale  on  the 
acknowledgment  of  Tucker  and  Blakely;  and  George  then, 
in  their  presence,  said  he  had  paid  $1,000  for  himself,  and 
Belcher  was  to  befriend  him.  It  is  supposed  that  Belcher 
in  his  answer  means  to  aver  the  payment  of  $1,000  as  the 
price  of  George,  yet  the  averment  is  in  terms  somewhat 
equivocal.  He  says  "  he  sent  by  George  the  sum  of  $1,000  " 
and  a  bill  of  sale  in  defendant's  handwriting,  and  told  him  to 
pay  the  money  to  Tucker  and  take  a  bill  of  sale  in  the 
presence  of  witnesses — and  "  that  all  the  money  paid  for  George 
was  his  own  money,  and  that  no  part  was  the  earnings  of 
George."  It  is  not  directly  inconsistent  with  this  statement, 
that  all  the  money  sent  was  furnished  by  George,  nor  that  the 
money  paid  was  much  less  than  the  nominal  consideration. 
He  further  avers,  however,  that  "  when  George  disappeared, 
his  earnings  were  not  enough  by  about  $300  to  replace  the 
sum  this  defendant  paid  for  him,"  (is  it  meant  in  his  pur- 
chase ?)  "  which  this  defendant  has  never  received."  At  all 
events,  it  is  considered  that  defendant  was  bound  to  prove  his 


APPEALS  IN  EaUITY.  l:J 


Columbia,  May,  1S59. 


averment  of  payment,  and  that  in  the  absence  of  proof,  he  is 
committed  by  the  admissions  of  his  agent,  George. 

Johnson  fnrther  testifies  that  two  or  three  days  after  he 
had  attested  the  bill  of  sale,  he  was  sent  for  to  Tucker's 
house,  when  Tucker  said,  in  the  presence  of  George,  I  wish 
you  to  draw  a  bill  of  sale  to  Belcher  for  my  other  slaves.  I 
wish  my  negroes  to  be  free  at  my  death,  and  not  to  serve 
another;  and  George  has  told  me  that  Helcher  would  befriend 
him  and  the  otiisr  negroes  by  taking  them  to  a  free  State. 
Witness  said  to  George,  you  are  Belcher's  property,  and 
George  replied,  I  am  not  afraid;  Belcher  is  too  good  a  man 
not  to  do  wlmt  he  has  said,  and  he  will  contrive  a  way  for 
my  escape.  On  this  occasion,  witness  did  draw  up  a  deed  of 
gift  from  Tucker  to  Belcher  of  the  former's  land  and  negroes, 
and  George,  from  his  own  money,  paid  $1  50  for  the  service; 
but  the  matter  was  not  then  consummated.  George  then 
seemed  more  interested  than  Tucker  in  having  the  deed 
drawn,  and  although  witness  advised  it  would  do  no  good, 
said  he  wanted  it  done.  Afterwards,  in  June,  the  bill  of  sale 
and  the  will  were  drawn  by  Mr.  Henderson  at  Laurens  C.  H., 
and  George  was  present  in  the  village  and  near  Mr.  H.'s  office, 
but  probably  not  within  its  doors. 

Oswald  Rickardson,  an  attesting  wit!) ess  of  the  deed,  tes- 
tifies to  little  conversation  at  the  time  of  the  execution,  except 
that  Tucker,  on  being  asked  by  Atwood,  why  he  gave  his 
property  to  one  he  had  never  seeti,  replied,  that  Belcher  was 
a  bachelor  and  a  clever  man — and  afterwards  remarked, 
that  the  matter  was  arranged  by  the  papers,  just  as  he 
wanted  it. 

Joseph  Crews  testifies,  that  sometime  before  the  deed  was 
executed,  George,  in  Tucker's  presence,  frequently  said  the 
old  man  (meaning  T.)  wished  his  negroes  to  be  free,  and 
carried  to  a  free  Slate  after  his  death,  and  that  his  land  should 
be  used  to  defray  expenses ;  and  offered  to  have  such  a  will 
drawn  in   the  name  of  the  witness,  as  legatee;  but  witness, 


14  APPEALS  IN  EaUlTY. 


Belcher  vs.  McKelvey. 


on  reflection,  declined.  Both  Tucker  and  George  counselled 
witii  him  about  Act  concerning  negroes  hiring  their  time. 
He  further  testified,  that  he  saw  George  at  Mr.  H.'s  office  on 
the  day  when  the  deed  was  prepared  ;  and  that  on  same  day 
Tucker  bought  his  burial  clothes  at  store  of  witness,  which 
were  selected  by  George. 

It  ap[)ears  by  the  admissions  of  the  answer  and  the  testi- 
mony of  M.  0.  McCaslan,  that  George  is  now  in  a  free  Slate, 
probably  in  Pennsylvania.  I  do  not  understand  it  to  be  con- 
tested tliat  George  left  this  State  with  tlie  consent  of  Belcher, 
after  Tucker's  death.  The  answer  of  tliis  defendant  states  : 
"  George,  whilst  in  this  (xA.bbevilIe)  district,  had,  as  already 
stated,  become  the  husband  of  a  woman,"  Rachel,  "  and  had 
become  much  attached  to  iier.  There  were  reasons  wiiich 
induced  those  having  tiie  ownership  or  control  of  this  woman 
!o  give  their  active  or  tacit  consent  to  iier  leaving  the  State. 
This  defendant  has  no  doubt  she  did  so  about  April,  A.  D. 
1856,  and  tliat  George  went  with  her.  This  was  not  in  pur- 
suance of  any  understanding,  agreement  or  trust,  with  Robert 
Tucker,  deceased,  but  arose  solely  in  consequence  of  George's 
relation  with  the  woman  alluded  to."  The  defendant  else- 
wliere  denies  that  either  of  said  bills  of  sale  was  made  under 
any  trust  or  confidence,  express  or  implied,  that  the  slaves 
named  therein  were  to  be  held  in  nominal  servitude  in  tliis 
State,  or  to  be  emancipated  without  its  limits  on  removal. 
For  further  details  of  the  pleadings  and  evidence,  I  refer  to 
the  pleadings  themselves,  to  the  depositions  of  witnesses, 
taken  by  commission,  and  to  my  notes  of  testimony. 

The  evidence  is  not  sufficient,  in  my  opinion,  to  demon- 
strate the  absolute  incompetence  of  Robert  Tucker,  in  April 
or  June,  1854,  to  make  contracts,  but  clearly  establishes  such 
imbecility  on  liis  part  as  to  render  him  an  easy  subject  of 
imposition  and  undue  influence.  Those  dealing  with  him 
should  be  held  to  proof  of  the  fairness  of  their  transactions. 
There  is  no  pretence  of  valuable  consideration  for  the  deed 
of  June,  and   although   the  answer  alleges  the  payment  of 


APPEALS  IN  Eauri'Y.  15 


Columbia,  May,  1S59. 


money  for  George,  no  evidence  of  the  payment  is  made,  and 
ilie  liill  of  sale  of  April  must  he  treated  Hke  the  other,  as  a 
mere  vohmtary  conveyance.  The  answer  on  this  point  is 
not  responsive,  so  as  to  be  self-proving. 

In  a  recent  circuit  opinion,  in  the  case  of  Cloud  vs.  Cal- 
houn, I  expressed  my  views  as  to  tlic  effect  of  answers, 
suggesting  matters  of  independent  defence  or  avoidance.  I 
suppose  that  a  sale  on  the  unlawful  trusts  mentioned  in  the 
second  and  third  sections  of  the  Act  of  1841,  particularly 
the  latter  section,  is  no  less  liable  to  be  declared  void  than  a 
voluntary  donation  ;  although  there  is  more  inlluence  in  a 
mere  gift  than  a  sale  in  aiding  the  implication  of  the  trust 
itself.  It  is  not  clear,  where  the  donee  is  a  mere  volunteer, 
that  it  is  not  enough  to  bring  the  gift  within  the  scope  of  the 
Act,  that  the  donor  certainly  intends  an  unlawful  trust, 
although  the  donee  may  not  be  fully  cognizant  of  it.  If  the 
trust  be  not  executed,  the  donor  is  defrauded ;  and  whether 
it  be  or  not,  there  is  an  attempt  to  defeat  the  policy  declared 
by  the  Legislature  in  the  enactment.  It  is  dilHciilt  to  con- 
vert one  into  a  trustee  without  his  consent,  and  the  trust 
under  the  Act  must  always  be  in  the  donee,  and  merely  the 
creation,  or  attempt  at  creation,  of  the  trust  on  the  part  of 
the  donor;  still,  a  donee,  or  other  person,  should  not  be 
allowed  to  lake  advantage  from  the  fraud  of  another,  and 
one  may  naturally  suspect  fraud,  or  purpose  to  create  a  trust, 
when  unreasonable  and  extravagant  bounty  is  conferred  on 
him  by  a  stranger. 

The  conclusion  in  the  present  case,  however,  docs  not  rest 
on  such  doubtlul  propositions.  The  proof  satisfies  me  that 
George  had  very  great  influence  with  his  master.  Tucker, 
which  he  exercised  to  produce  a  violation  of  the  provisions 
of  the  Act.  George,  at  least,  had  full  knowledge  of  the 
design  of  his  master  to  create  the  unlawful  trust  of  remov- 
ing the  slaves  from  the  State,  with  the  purpose  of  emancipa- 
tion, and  actively  co-operated  in  its  creation;  and  he  must 
be  regarded  as  the  agent  of  defendant,  Belcher,  in  accepting 


16  APPEALS  IN  EaUITY. 

Belcher  vs.  McKelvey. 

such  trust  as  to  both  bills  of  sale.  This  principal  is  as  much 
responsible  for  the  acts  and  declarations  of  his  agent,  as  if 
done  or  uttered  by  himself  personally.  Evasion  of  the  Act 
would  be  as  easy  as  progress  in  a  smooth  and  broad  high- 
way, if  the  donee  be  held  committed  only  by  his  individual 
acts. 

McKelvey,  the  administrator  of  Tucker,  is  one  of  tiie  next 
of  kin  of  his  intestate,  and  one  of  the  plaintiffs  in  the  cause, 
and  it  was  faintly  suggested  that  the  case  is  within  tlie  prin- 
cii)le  of  Vose  vs,  Hannahan^  10  Rich.,  465.  Bat  McKelvey 
is  a  necessary  party,  and  sues  as  one  of  the  next  of  kin, 
in  conjunction  with  others,  and  not  in  his  representative 
character. 

It  is  also  said  that  the  Act  applies  only  to  cases  where  the 
slaves  abide  within  the  jurisdiction  of  the  Court.  But  George 
was  converted  to  the  use  of  Belcher  after  the  death  of  intes- 
tate, and  having  been  permitted  to  escape  from  the  State,  this 
defendant  must  be  held  to  account  for  his  vahie. 

It  is  adjudged  and  decreed,  that  the  gifts  of  the  slaves,  in 
the  bills  of  sale  of  April  and  June,  1854,  are  void  and  of  no 
effect,  and  that  defendant^  Belcher,  be  held  to  account  for  the 
value  of  George,  for  the  benefit  of  R.  Tucker's  distributees — 
it  being  understood  that  the  other  slaves,  or  their  proceeds, 
are  within  the  control  of  some  of  these  distributees. 

It  is  also  ordered  and  decreed,  that  the  bill  of  Belcher  vs. 
McKelvey,  the  first  in  the  caption,  be  dismissed. 

It  is  also  ordered  that  an  issue  be  made  uj)  forthwith 
between  the  parties,  in  which  W.  W.  Belcher  shall  be  the 
actor,  to  be  tried  in  the  Court  of  Common  Pleas  for  Laurens 
district,  to  test  the  validity  of  the  devise  of  land  to  him  by 
the  supposed  will  of  June,  1854;  and  that,  in  the  mean- 
time, so  much  of  the  second  bill,  as  relates  to  the  partition  of 
land,  be  retained. 

W.  W.  Belcher  appealed  on  the  grounds: 

1.  Because  there  was   no  trust  or  confidence   tending   to 


APPEALS  L\  EaUITY.  17 

Columbia,  May,  1S59. 

emancipation  of  the  slaves,  in  contravention  of  the  Act  of 
the  General  Assembly. 

2.  Because  in  no  event  should  he  be  held  to  account  for 
the  value  of  the  slave  George,  who  was  bona  fide  sold  by  the 
intestate  in  his  lifetime. 

3.  Because  the  decree,  if  sustained  by  the  testimony,  is 
based  upon  the  declarations  of  the  slave  George,  which  were 
wholly  incompetent. 

4.  Because  the  decree  was  contrary  to  the  testimony  and 
the  equities  of  the  parties. 

Thomson,  Henderson,  for  appellant. 
Young,  Simpson,  contra. 

The  opinion  of  the  Court  was  delivered  by 

DuNKiN,  Ch.  It  is  proposed  first  to  consider  the  imputed 
error  of  the  decree  in  rendering  the  appellant  accountable  for 
the  value  of  the  slave,  George.  It  appears  that,  on  24th 
April,  1854,  the  intestate  executed  a  bill  of  sale  of  George 
to  the  defendant  for  the  consideration  of  $1,000.  The  bill 
of  sale  was  in  the  handwriting  of  the  defendant,  who 
resided  in  Abbeville  district, — contained  a  warranty  of  title 
and  soundness,  and  was  executed  by  the  intestate  under 
his  hand  and  seal,  in  presence  of  attesting  witnesses.  George 
passed  immediately  into  the  possession  of  the  defendant,  with 
whom  he  remained  for  about  two  years  thereafter;  and  dis- 
appeared, to  wit:  about  April,  1856,  in  the  manner  stated  in 
the  evidence.     These  proceedings  on  the  part  of  the  next  of 

kin  of  the  intestate  were  instituted 1858,  and  it  is,  among 

other  things,  substantially  and  directly  charged,  that,  although 
the  bill  of  sale  of  April,  1854,  was  for  an  apparent  valuable 
considoratio:i,  yet  the  money  on  that  occasion  paid  to  the 
intestate,  was,  in  fact,  his  own  money,  being  the  earnings  of 
his  slave  George  placed  in  the  hands  of  the  defendant  for 
that  purjiose  ;  and  that  a  secret  trust  existed,  that  George 
3 


18  APPEALS  IN  EaUITY. 

Belcher  vs.  McKelvey. 

was  to  be  emancipated  by  the  defendant,  or  held  by  him  in 
nominal  servitude.  The  bill  calls  upon  the  defendant  to 
answer  upon  oath,  all  and  singular  the  matters  charged. 
Thus  interrogated,  the  defendant  answered  that  he  did  pur- 
chase George  at  the  time  mentioned — that  he  made  the  pur- 
chase at  the  request  of  George,  who  desired  that  the  defendant 
might  be  his  master,  because  he,  George,  would  be  near  his 
wife  who  lived  in  that  neighborhood — that  he,  the  defendant, 
sent  the  bill  of  sale,  drawn  by  himself,  with  the  sum  of  one 
tiiousand  dollars,  to  be  paid  to  the  intestate  by  whom  the 
bill  of  sale  was  to  be  executed — the  defendant  avers  that  all 
the  money  paid  for  George  was  his  own  money,  and  that  no 
part  was  the  earnings  of  George — that,  from  the  time  of  the 
execution  of  the  bill  of  sale,  George  remained  with  the 
defendant  as  his  master,  and  that  there  was  no  trust,  or  con- 
fidence, when  the  defendant  became  the  owner  of  George, 
that  he  should  be  held  in  nominal  servitude,  or  should  be 
emancipated.  By  the  decree  of  the  Circuit  Court,  it  is  held 
that  this  answer  of  the  defendant  in  relation  to  the  payment 
of  the  consideration,  is  "somewhat  equivocal."  "  But  that,  at 
all  events,  the  defendant  was  bound  to  prove  his  averment  of 
payment."  And  again,  it  is  held  that,  "although  the  answer 
alleges  the  payment  of  money  for  George,  no  evidence  of  the 
payment  is  made.  The  answer  on  this  point  is  not  respon- 
sive, so  as  to  be  self-proving;  and  the  bill  of  sale  of  April 
must  be  treated  as  a  mere  voluntary  conveyance." 

The  existence  and  the  exigency  of  the  general  rule  of  this 
Court  is  not  called  in  question,  to  wit:  that  the  answer  of  a 
defendant  responsive  to  the  charges  of  the  bill,  should,  in 
general,  be  taken  as  true  unless  contradicted  by  two  wit- 
nesses, or  one  witness,  and  strong  corroborating  circum- 
stances. But  the  Chancellor  rests  his  decision  on  the  dis- 
tinction, recognized  by  the  Court  in  Cloud  vs.  Calhoun,  10 
Rich.  Eq.,  358,  that  the  answer  has  not  this  effect  when 
"suggesting  matters  of  independent  defence  or  avoidance." 
The  distinction,  though  not  so  familiar  as  the  rule,  is  certain- 


APPEALS  IN  EaUITY.  19 

Columbia,  May,  1SG9. 

ly  well  established  as  well  in  reason  as  by  authority.  A  de- 
fendant, charged  with  the  receipt  of  a  sum  of  money,  and  by 
his  answer  admitting  the  receipt,  cannot  exonerate  himself 
by  an  averment  that  he  had  paid  it  to  the  plaintiff's  use. 
But  to  a  majority  of  this  Court,  it  seems  a  misapprehension 
to  hold,  in  this  case,  that  "  the  defendant  was  bound  to  prove 
the  payment  of  the  consideration  money."  As  against  the 
intestate  and  all  claiming  as  volunteers  under  him,  the  bill 
of  sale  of  24th  April,  1854,  under  the  hand  and  seal  of  the 
intestate,  stands  for  proof,  until  successfully  assailed.  The 
amis  of  proof  is  on  those  who  maintain  that  the  deed  speaks 
other  than  the  truth.  To  establish  this,  the  plaintiffs,  by  their 
bill,  undertake  to  purge  the  conscience  of  the  defendant,  and 
require  him  to  answer  the  charge  that  the  money  paid  was 
not,  as  the  bill  of  sale  purports,  his  (defendant's)  money,  but 
was  the  earnings  of  the  slave  of  the  intestate,  and  conse- 
quently, in  law,  the  intestate's  own  money.  When  the  de- 
fendant replies  to  this,  that  "all  the  money  paid  for  George  was 
his  own  money,"  and,  not  content  with  this,  adds,  "  and  that 
no  part  was  the  earnings  of  George,"  il>  appears  to  the  Court 
a  direct  and  categorical  response  to  the  charge  of  the  bill  in 
that  behalf,  and  entitles  the  defendant  to  the  full  benefit  of 
the  effect  of  an  answer  in  such  cases.  Giving  to  the  defend- 
ant the  advantage  of  this  rule,  he  stands  as  a  purchaser  for 
valuable  consideration  under  the  bill  of  sale,  24th  April, 
1854.  The  intestate  received,  in  his  lifetime,  the  value  of 
his  property.  The  defendant  explicitly  denies  any  fiduciary 
relation,  express  or  secret — and  the  Court  is  not  aware  of  any 
principle  by  which  the  defendant,  under  these  circumstances, 
can  be  held  responsible  for  the  value  of  George  to  the  next 
of  kin  of  the  intestate. 

The  deed,  1.3th  .lune,  1854,  by  which  the  intestate  trans- 
ferred seven  slaves  (by  name)  to  the  defendant,  stands  on  a 
different  footing.  |Il  was  manifestly  voluntary — made  to  a 
perfect  stranger — and  a  life  estate  was  reserved  to  the  donot. 
It  was  executed  on  the  same  day  that  he  attempted  to  mak' 


20  APPEALS  IX  ECIUITY. 

Belcher  vs.  McKelvey. 

a  testamentary  disposition  of  his  whole  estate,  real  and  per- 
sonal, in  favor  of  the  same  donee.  The  testimony  abun- 
dantly establishes  that  the  object  of  the  donor  was  to  contra- 
vene the  provisions  and  defeat  the  policy  of  the  Act  of  1841. 
By  the  terms  of  that  Act  all  such  efforts  are  made  to  enure 
to  the  benefit  of  the  next  of  kin  of  the  donor,  but  the  object 
of  the  Act  is  the  protection  of  the  public.  And  I  share  in 
the  apprehension  of  the  circuit  Chancellor,  that  the  purposes 
of  the  Act  might  easily  be  frustrated  if  it  were  necessary  to 
bring  home  to  the  knowledge  of  the  voluntary  donee  the 
unlawful  designs  of  the  donor.  In  the  analogous  case  of  a 
voluntary  deed  in  fraud  of  creditors,  it  is  not  necessary  to 
establish  the  scienter  on  the  part  of  the  donee.  In  Story's 
Eq.,  §  351,  the  authority  of  Pothier  and  other  civil  law 
writers  is  cited  for  the  doctrine  applicable  to  this  class  of 
cases.  It  was  the  rule  of  the  civil  law  to  avoid  all  alien- 
ations or  other  dispositions  of  their  property  made  by  debt- 
ors to  defraud  their  creditors.  Hence  all  such  dispositions 
were  annulled,  whether  the  donee  knew  of  the  prejudice 
intended  to  the  creditors  or  not.  In  the  language  of  Pothier, 
the  inquiry  is  not  whether  he,  to  whom  the  gift  was  made, 
knew  of  the  intention  of  the  donor,  but  only  whether  the 
creditor  was  defraitded.  The  voluntary  donee  has  no  cause 
of  complaint  except  that  he  is  not  permitted  to  enjoy  that 
which  the  donor  had  no  right  to  give  away.  But  it  is 
ditlicult  to  infer  a  want  of  knowledge  on  the  part  of  the 
defendant.  The  design  of  the  intestate  is  clearly  established. 
Shortly  prior  to  June,  1854,  he  had  executed  a  deed  of  the 
same  character  to  another  person  (Johnson),  which  was  after- 
wards returned  to  him,  declaring,  at  the  time,  that  his  wish 
was  "  to  have  his  negroes  free  and  not  serve  after  his  death." 
And,  again,  the  witness,  Crews,  says  that,  some  time  before 
the  deed,  George,  in  presence  of  intestate,  said  "  the  old  man 
wished  the  negroes  free,  and  carried  to  a  ]^"ee  State  after  his 
death,  and  land  to  pay  expenses  ;"  and  George  offered  to 
have  a  will  made  in  his  (witness')  name.     That  he  (the  wit- 


APPEALS  L\  EaUlTY.  31 

Columbia,  May,  1S59. 

ness)  had  some  idea  of  accepting  the  offer  at  first,  but,  on 
reflection,  declined.  Then,  on  the  same  day,  the  intestate 
executed  a  will,  by  which  he  devised  and  bequeathed  his 
land  and  slaves  to  the  defendant,  and  executed  this  deed  by 
which  he  transferred  to  him  the  slaves  only.  The  defendant 
was  an  entire  stranger  to  him.  He  had  heard  that  "  he  was 
a  bachelor  and  a  clever  man."  All  this  proves  the  purpose, 
as  well  as  the  expectation,  of  the  intestate  in  executing  the 
papers.  Can  it  be  doubted  that  the  defendant,  hearing  of 
this  unexpected  bounty  on  the  part  of  a  perfect  stranger,  was 
put  on  the  inquiry,  and  that  his  inquiries  were  satisfied?  It 
does  not  clearly  appear,  from  the  evidence,  to  whom  the  deed 
was  delivered  for  the  defendant,  nor  from  whom  he  received 
it.  It  probably  came  to  him  through  the  hands  of  George. 
But  the  answer  of  the  defendant  in  relation  to  the  will,  which 
was  a  part  of  the  same  transaction,  is  a  clear  admission  of  the 
defendant's  fiduciary  relation  in  some  way,  "  This  defend- 
ant was  impressed  with  the  idea  that  a  confidence  was  reposed 
in  him  by  the  said  Robert  Tucker,  deceased — that  there  was 
a  duty  incumbent  upon  him  which  it  would  be  sheer  weak- 
ness to  decline — that  it  would  be  equivalent  to  a  betrayal  of 
a  trust."  And  that,  under  this  impression,  he  had  taken  the 
necessary  steps  to  test  the  validity  of  the  will,  which  had,  as 
to  the  personalty,  terminated  unsuccessfully.  On  the  face  of 
the  will,  as  well  as  of  the  deed,  the  gift  of  the  property  to  the 
defendant  was  equally  absolute  and  unconditional.  It  was 
the  secret  "  confidence"  which  the  defendant  "  had  an  idea 
was  reposed  in  him"  by  the  donor,  and  "  which  it  would  be 
equivalent  to  a  betrayal  of  trust  to  decline,"  against  which 
the  various  provisions  of  the  Act  of  1841  were  directed,  and 
which  rendered  the  deed  void. 

If  the  conduct  of  the  intestate  had  been  entirely  sponta- 
neous, such  would  be  the  conclusion  in  relation  to  the  validity 
of  this  instrument.  But  he  was  about  eighty  years  of  age — 
exceedingly  feeble  in  mind  and  body — very  much  under  the 
influence  of  his  slaves,  especially  of  George,  who  was  shrewd 


23  APPEALS  IN  EaUITY. 

Belcher  vs.  McKelvey. 

- 

and  intelligent.  Without  recapitulating  the  evidence  detailed 
in  the  decree  of  the  Chancellor,  his  conclusion  is  well  sus- 
tained, that  "  it  clearly  established  such  imbecility  on  his 
part  as  to  render  him  an  easy  subject  of  imposition  and  un- 
due influence,"  and  the  inference  is  strong,  from  many  parts 
of  the  testimony,  that  the  influence  of  his  slaves  was  mani- 
fested in  the  concoction  of  the  instrument  providing  for  their 
benefit. 

For  the  reasons  hereinbefore  stated,  we  are  of  opinion  that 
the  defendant  was  not  accountable  to  the  distributees  of 
Robert  Tucker,  deceased,  for  the  value  of  the  slave,  George; 
and  that,  in  this  respect,  the  decretal  order  of  the  Circuit 
Court  should  be  reformed,  and  it  is  so  ordered  accordingly. 
In  all  other  respects  the  decree  of  the  Circuit  Court  is  affirmed 
and  the  appeal  dismissed. 

Johnston,  Ch.,  concurred. 

Wardlaw,  Ch.,  said:  I  doubt  as  to  the  effect  given  to  the 
answer,  and  as  to  the  bill  of  sale  for  George  ;  I  concur  in 
other  respects. 

Decree  modified. 


APPEALS  IN  EaUITY.  23 


Columbia,  May,  1859. 


RiCHAUD  G.  Howard  tjs.  Robert  R.  Cannon  and  others. 

Injuncti07i  —  Jurisdiction  —  t'lbsent    Defendant  —  United 
States  Court. 

An  absent  defendant,  having;  an  interest  under  an  assignment  for  the  benefit  of 
creditors,  may  be  restrained  by  injunction  from  enforcing  his  jiid<fment  by 
seizure  and  sale  o(  the  assigned  estate — the  judgment  having  been  recovered 
against  the  assignor  after  the  execution  of  the  assignment. 

A  party  who  obtains  judgment  in  the  United  States  Court,  may  be  restrained  by 
the  Court  of  Equity  of  this  Stale,  from  enforcing  his  judgment  by  levy  and  sale 
of  projterty  not  liable  to  levy  and  sale  under  his  execution. 

BEFORE  JOHNSTON.  CH.,  AT  DARLINGTON,  FEBRUARY.  IS.'JO. 

This  case  will  bo  sufficiently  iinderstood  from  the  opinion 
delivered  in  ihe  Court  of  Appeals. 

Dargan,  for  appellant. 

Phillips^  contra. 

The  opinion  of  the  Conrt  was  delivered  by 

Wardlaw,  Ch.  Robert  R.  Cannon  on  March  IS,  1858, 
conveyed  to  the  plaintiff,  Richard  G.  Howard,  all  his  lands, 
chattels  and  credits,  in  trust,  primarily,  for  the  payment  of  his 
debts,  in  terms  and  according  to  a  classification  which  are 
not  apparently  impeachable.  The  assignor  was  greatly  em- 
barrassed in  his  affairs,  to  the  extent  of  probable  insolvency; 
and  the  assignee  filed  this  bill  to  call  in  the  creditors  and 
marshal  the  assets  of  the  assignor.  After  the  conveyance  to 
the  plaintiff,  Cnmmings  and  Styron,  residents  without  the 
limits  of  this  State,  recovered  judgment  for  a  large  sum 
against  the  assignor.  Cannon,  in  the  Circuit  Court  of  the 
United   Slates   for  South  Carolina,  and   when   this   bill   was 


24  APPEALS  IN  EaUITY. 

Howard  vs.  Cannon. 

filed,  were  proceeding  to  execute  their  judgment  by  the  seiz- 
ure and  sale  of  some  of  the  slaves  assigned,  through  the 
agency  of  W.  H.  Wingate,  deputy  of  D.  H.  Hamilton,  who  is 
the  marshal  of  the  United  States,  for  the  district  of  South 
Carolina.  Upon  hearing  affidavits  supporting  the  allegations 
of  the  bill,  Mr.  Commissioner  Haynesworth  granted  a  special 
injunction,  restraining  Cummings  and  Styron,  in  common 
with  other  creditors  of  Cannon,  who  had  obtained  judgments 
against  Cannon  after  the  execution  of  the  deed  of  assign- 
ment to  plaintiff,  from  seizing  and  selling  the  property  as- 
signed. Cummings  &  Styron,  by  attorney,  pleaded  to  the 
jurisdiction  of  this  Court,  on  the  ground  that  the  subject  of 
suit  was  under  the  exclusive  jurisdiction  of  the  Circuit  Court 
of  the  United  States,  inasmuch  as  that  Court  had  first  taken 
cognizance  of  the  controversy  between  them  and  Cannon; 
and  their  agent,  Wingate,  in  like  manner,  pleaded  to  the  juris- 
diction of  this  Court.  The  Chancellor  on  circuit  sustained 
the  pleas  of  Cummings  &  Styron  and  of  Wingate,  to  the 
jurisdiction  of  this  Court,  and  excepted  them  from  his  order 
calling  in  the  creditors  of  Cannon  to  present  and  prove  their 
demands. 

The  plaintiff  appeals  from  so  much  of  the  decree  as  sus- 
tains the  pleas  to  the  jurisdiction  and  exempts  Cummings  & 
Styron  from  the  call  on  creditors  to  present  and  prove  their 
demands.  The  Chancellor  proceeded  mainly  on  the  reason, 
not  suggested  by  the  pleas,  that  Caimmings  &  Styron  were 
non-resident  and  had  no  such  property  here,  the  subject  of 
litigation,  as  brought  them  within  the  cognizance  of  the 
State  Court. 

The  plaintiff,  in  his  first  ground  of  appeal,  impugns,  and 
we  think  justly,  this  course  of  reasoning,  because  Cummings 
&  Styron  had  a  direct  and  substantial  interest  in  the  sub- 
ject of  controversy.  The  Act  of  1784,  7  Stat.,  210,  gives  juris- 
diction to  the  Court  as  to  absent  defendants  notified  by  adver- 
tisement in  the  newspapers  for  three  months,  without  express 
restriction  as  to  their  having  property  in  the  State.     But  the 


APPEALS  IN  EaUITY.  585 

Columbia,  May,  1859. 

obvious  injustice  of  r.oncluding  a  party  where  neither  his  per- 
son nor  property  was  within  the  jurisdiction,  properly  induced 
the  Court  to  give  an  interpretation  to  the  Act  conformable  to 
justice.  It  has  not  been  questioned  since  JVinstanley  vs. 
Savage,  2  McC.  Ch.,  435,  that  non-residents  cannot  be  made 
parties  except  in  reference  to  their  property  here.  In  this 
case,  however,  Cummings  &  Styron  had  immediate  prop- 
erty in  the  subject  of  controversy,  for  the  deed  to  the  plain- 
tiff was  an  express  trust  for  all  the  creditors  of  Cannon  in  the 
property  assigned.  It  was  held  in  Kinloch  vs.  Meyer,  Spear, 
Eq.,  427,  that  the  Court  of  Equity  would  entertain  jurisdic- 
tion of  a  bill  seeking  to  subject  the  share  of  an  absent  dis- 
tributee in  the  hands  of  an  administrator,  to  the  payment  of 
the  distributee's  debts.  That  case  is  conclusive  of  the  prin- 
ciple involved  in  this  case.  Here  the  issue  is  as  to  the  share 
of  absent  creditors,  in  the  hands  of  a  trustee,  to  be  adminis- 
tered. This  is  simply  a  matter  of  authority,  and  it  is  super- 
tiuous  to  reiterate  reasoning  well  expressed  heretofore,  T 
content  myself  with  citing  some  of  the  cases.  Bowden  vs. 
Schaizell,  Bail.  Eq.,  360;  Cruger  vs.  DaJiiel,  McM.  Eq.,  189; 
Garden  vs.  Hunt,  Chev.  Eq.,  42  ;  Taylor  vs.  Williamson, 
McM.  Eq.,  348 ;  McKinne  vs.  City  Council  of  Augusta,  5 
Rich.  Eq.,  55 ;  Hurt  vs.  Hurl,  6  Rich.  Eq.,  114;  Brennan  vs. 
Burke,  6  Rich.  Eq.,  200. 

The  second  ground  of  appeal  assails  the  reasoning  ex- 
pressed in  the  pleas,  that  the  subject  of  controversy  was 
within  the  exclusive  jurisdiction  of  the  Circuit  Court  of  the 
United  Stales,  which  rendered  the  judgment  of  Cummings 
4'  Styron  vs.  Cannon.  We  have  every  disposition  to  avoid 
even  the  appearance  of  conflict  with  the  tribunals  of  the 
United  States  created  under  the  Constitution,  and  we  have  no 
disposition  to  quibble  between  restraining  processes  and  re- 
straining persons  from  proceeding  under  them.  But  surely 
there  is  a  substantial  difference  between  undertaking  fo  revise 
the  judgmeni  and  procedure  of  a  co-ordinate  or  even  superior 
tribunal,  and  interfering  to  restrain  parlies  from  acts  not  au- 


26  APPEALS  IN  EaUITY. 

Howard  vs.  Cannon. 

thorized  by  our  equals  or  superiors.  It  does  not  impugn,  in 
any  respect,  the  judgment  of  the  Federal  tribunal,  that  we 
interpose  to  prevent  parties  under  our  control  from  abusing 
the  process  of  that  Court.  It  has  granted  a  judgment  against 
Cannon,  and  we  make  no  offer  to  restrain  the  execution  ot 
their  judgment  from  the  estate  of  Cannon.  But  we  do  not 
perceive  that,  under  a  judgment  against  Cannon,  the  estate  of 
Howard  or  any  other  person  can  be  legitimately  seized  and 
sold.  The  judgment  of  Cummings  &  Styron  is  left  intact; 
and  we  simply  determine  that  they  or  their  agent  had  no  au- 
thority to  seize  the  property  of  a  stranger  under  pretence  of 
its  operation.  To  determine  otherwise  would  be  to  adjudge 
that  a  plaintiff,  in  execution  against  a  pauper,  might  obtain 
satisfaction  from  any  rich  inhabitant  of  the  State. 

It  is  suggested,  however,  that  the  plaintiff  should  have 
applied  to  the  Circuit  Court  of  the  United  States  on  the 
equity  side,  for  relief  in  this  case.  But  the  plaintiff  could 
not  have  obtained  relief  there,  as  most  of  the  creditors  were 
resident  in  the  same  State  with  himself.  It  is  unnecessary 
to  discuss  the  provisions  of  the  Constitution  and  of  the  Acts 
of  Congress  in  relation  to  this  matter,  as  it  is  settled,  by  adju- 
dication, that  the  Circuit  Court  of  the  United  States  has  no 
jurisdiction  as  to  defendants  resident  out  of  the  district  in 
which  the  Court  is  held.  Russell  vs.  C/a?'^e,  7  Cranch,  69 ; 
Carneal  vs.  Banks,  10  Wheat.,  181 ;  Ford  vs.  Douglass,  5 
How.,  143. 

It  is  ordered  and  decreed,  that  the  appeal  be  sustained,  and 
the  circuit  decree  modified  accordingly. 

It  is  further  ordered  and  decreed,  that  the  defendants, 
Beaseley  &  Wingate,  deliver  to  the  plaintiff  the  chattels 
seized  by  them. 

Johnston  and  Dunzin,  CC,  concurred. 

Decree  modified. 


APPEALS  IN  EQUITY.  27 


Columbia,  May,  1S59. 


ISOM    KiRKPATRICK    VS.    VALENTINE    AtKINSON    AND    WIFE. 

Issue  at  Laiv — New  Trial — Appeal — Incompeteijt  Evidence — 
Personal  Representative — Fraud — Li/nitations,  Statute  of. 

Where  an  issue  at  law  is  ordered,  the  verdict  of  the  jury,  though  approved  of  by 
the  presiding  Judge,  is  not  obligatcH-y  on  the  Chancellor — he  may  direct  a  new 
trial,  or  even  decide  the  cause  in  opposition  to  the  verdict. 

Upon  an  appeal  from  a  Circuit  Chancellor's  decree,  refusing  to  order  a  new  trial 
at  law,  it  is  incumbent  on  the  appellant  to  show  that  the  Chancellor  has  riiis- 
carried ;  it  is  not  enough  for  the  Court  of  Appeals  to  have  misgivings  as  to 
the  result  attained  by  the  Chancellor. 

Where  incompetent  evidence  was  received  on  the  trial  of  the  issue  at  law,  the 
Circuit  Chancellor  is  not  bound,  like  a  Law  Court  of  Appeals,  to  grant  a  new 
trial  on  that  ground;  he  may,  if  he  is  satisfied  with  the  verdict  upon  consid- 
eration of  the  competent  testimony,  refuse  to  grant  a  new  trial. 

Where  the  personal  representative  is  entitled  to  an  account  of  rents  and  jjrofits 
accruing  before  the  death  of  his  intestate,  he  has  such  an  interest  as  entitles 
him  to  file  a  bill  to  set  aside,  on  the  ground  of  fraud,  a  conveyance  of  the  land 
made  by  the  intestate. 

From  analogy  to  the  statute  of  limitations,  the  Court  of  Equity  generally  adopts 
the  period  of  the  statute  as  a  bar  to  equitable  demands.  Sometimes  a  shorter 
period  is  held  to  preclude  the  plaintiff,  and  where  the  circumstances  of  the 
case  make  it  inequitable  for  the  defendant  to  insist  on  the  bar  of  the  statute, 
the  Court  will  not  enforce  it. 

In  June,  1S47,  .T.  M.  executed  two  deeds,  by  which  he  conveyed  his  land  and 
negroes  to  V.  A.,  reserving  the  use  to  himself  for  life.  He  remained  in  pos- 
session until  1S52,  when  he  died  intestate.  In  IMay,  1550,  the  plaintiff"  admin- 
istered on  his  estate,  and  shortly  afterwards  filed  a  bill,  to  set  aside  the  deeds, 
on  the  ground  of  misrepresentation  and  fraud,  and  of  the  incapacity  of  the 
donor.  The  allegations  having  been  found  true,  and  it  not  appearinar  that  the 
capacity  of  the  donor  had  imjiroved.  the  statute  of  limitations  was  held  not  to 
bar  the  plaintiff's  bill. 

BEFORE  DARGAN,  CH.,  AT  CHESTER,  JUNE,  1858. 

John  McKelvey  and  Elizabeth,  hi.s  wife,  on  the  2.3d  of 
June,  1847,  executed  two  deeds,  whereby  the  said  John 
McKelvey,  reserving  the  use  to  himself  and  wife  during  their 


28  APPEALS   [N  EaUlTY. 

Kirkpatrick  vs.  Atkinson. 

lives,  conveyed  all  his  real  and  personal  estate  to  the  defend- 
ants, Valentine  Atkinson  and  wife.  Elizabeth  McKelvey 
died  in  September,  1848,  and  John  McKelvey  died  in  Jnly, 
1852.  In  May,  1856,  letters  of  administration  on  the  estate 
of  John  McKelvey  were  granted  to  the  plaintiff,  who,  there- 
upon, filed  this  bill,  to  set  aside  the  said  deeds.  In  July, 
1857,  an  order  was  made,  directing  an  issue,  to  determine 
whether  the  donor  was  of  sufficient  capacity  to  execute  the 
deeds,  and  whether  said  deeds  were  procured  to  be  executed 
by  misrepresentation,  fraud,  or  undue  influence.  The  issue 
was  tried  at  Chester,  Spring  Term,  1858,  before  his  Honor, 
Judge  O'Neall,  and  the  jury  found  for  the  plaintift'  on  both 
the  issues. 

The  defendants  appealed,  and  in  June,  1858,  moved  the 
Court  at  Chester  for  a  new  trial.  His  Honor,  Chancellor 
Dargan,  overruled  the  motion,  and  decreed  in  favor  of  the 
plaintitf. 

The  defendants  appealed  on  the  grounds: 
I.  Because    the  Chancellor   erred    in  not  granting  a  new 
trial  on  the  grounds  taken  before  him,  to  wit: 

1.  Because  the  presiding  Judge  erred  in  receiving,  as  evi- 
dence, the  declarations  of  John  McKelvey,  and  Elizabeth 
McKelvey  in  derogation  of  their  own  deeds,  after  execution 
thereof. 

2.  Because  the  presiding  Judge  erred  in  permitting  the 
opinion  of  witnesses  as  to  the  competency  of  John  McKelvey, 
and  his  capacity  to  make  the  deed,  without  any  fact,  showing 
want  of  capacity. 

3.  Because  from  the  proof  it  was  clear  that  the  said  John 
McKelvey  made  his  own  contracts  up  to  the  time  of  his 
decease;  that  he  had  resided  with  the  defendant  for  the  space 
of  two  years,  long  after  execution  of  said  deed,  without  any 
manifestation  of  displeasure  as  to  the  terms  or  with  the 
defendants;  that  there  was  no  proof  of  any  single  fact  show- 
ing want  of  capacity  to  understand  the  deed  in  controversy. 


APPEALS  IN  EaUITY.  29 

Columbia,  May,  IS59. 

'I'he  verdict  of  the  jury  finding  want  of  capacity  is  without 
evidence. 

4.  Because  there  was  no  proof  of  misrepresentation,  undue 
influence  or  fraud  on  the  part  of  the  defendants.  The  verdict 
of  the  jury  finding  that  the  said  deeds  were  procured  by 
fraud,  misrepresentation,  and  undue  influence,  is  without 
evidence. 

5.  Because  it  is  respectfully  submitted,  that  the  presiding 
Judge  erred  in  stating  and  suggesting  to  the  jnry,  in  order  to 
sustain  the  testimony  of  .James  Robinson,  that  the  deed  in 
question  might  have  been  lodged  with  the  clerk  of  the 
Court,  with  a  request  not  to  record  the  same,  when  there  was 
no  proof,  nor  any  efljort  to  prove  the  same,  thus  supplying  to 
the  jury,  facts  to  sustain  the  testimony,  without  which  it  must 
have  been  discredited. 

II.  Because  the  complainant,  Isom  Kirkpatrick,  as  admin- 
istrator of  John  McKelvey,  had  no  right  to  the  rents  and 
profits  of  the  real  estate  of  John  McKelvey;  the  heirs-at-law, 
and  not  his  aduiinistrators  being  entitled  thereto  ;  the  decree 
of  the  Chancellor  directing  such  accounting  is  erroneous  and 
ought  to  be  reversed. 

III.  Because  the  decretal  order  directing  an  issue  to  try  the 
validity  of  the  deed  made  to  the  defendant  by  John  McKelvey, 
of  his  land,  is  erroneous;  the  heirs-at-law  of  John  McKelvey, 
being  no  party  to  the  proceedings,  and  they  are  the  only 
persons  who  have  a  right  to  test  the  validity  of  said  deed. 

IV.  Because  more  than  four  years  having  elapsed  since  the 
execution  of  the  deeds,  before  the  commencement  of  the  suit, 
the  statute  of  limitations  was  a  bar  to  so  much  of  tlic  bill  as 
relates  to  the  negro  slaves,  and  other  personal  property ;  the 
decree  of  the  Chancellor  overruling  said  plea  was  erroneous. 

V.  liecause  the  costs  of  suit  should  have  been  paid  out  of 
the  estate,  and  not  by  the  defendants. 

Mellon,  McJilily^  for  appellants. 
Smith,  contra. 


80  APPEALS  IN  EaUlTY. 

Kirkpatrick  vs.  Atkinson. 

The  opinion  of  the  Court  was  dehvered  by 

DuNKiN,  Ch.  At  the  original  hearing  of  this  cause  in  the 
Circuit  Court,  the  presiding  Chancellor,  after  an  examination 
of  some  of  the  witnesses,  deeming  the  inquiries  involved  in 
the  pleadings  peculiarly  proper  for  the  consideration  of  a 
jury  of  the  vicinage,  who  were  best  acquainted  with  the  par- 
ties and  witnesses,  directed  an  issue  at  law.  The  result  was 
certified  to  this  Court  by  the  presiding  Judge,  who  tried  the 
issue  and  who  was  satisfied  with  the  verdict.  On  a  motion 
for  a  new  trial,  before  the  Circuit  Court  of  Equity,  in  July 
last,  the  Chancellor,  after  a  review  of  the  evidence  appearing 
in  the  notes  of  the  presiding  Judge,  expressed  his  satisfaction 
with  the  verdict  rendered  by  the  jury,  dismissed  the  motion 
for  a  new  trial  and  proceeded  to  a  final  decree  in  the  premises, 
which  is  the  subject  of  this  appeal. 

The  principal  grounds  taken  involve  the  proposition  that 
the  result  attained  by  the  concurrent  judgment  of  the  jury, 
the  presiding  Magistrate  in  the  Court  of  Law,  and  of  the 
circuit  Chancellor,  is  not  warranted  by  the  testimony.  Every 
human  tribunal  is  fallible,  and  all  the  machinery  invented 
for  eliciting  the  truth  may  sometimes  prove  ineffectual,  but 
such  is  not  the  general  presumption.  The  parties  had,  in 
the  first  instance,  the  advantage  of  the  time-honored  observ- 
ance of  calling  on  jurors  to  respond  to  questions  of  fact. 
Their  verdict,  approved  as  it  was  by  the  presiding  Judge, 
was  not  obligatory  upon  the  Chancellor.  Unless  satisfied 
with  the  finding,  he  was  at  liberty  to  direct  a  new  trial,  or 
even  to  decide  the  cause  in  opposition  to  the  verdict.  This 
is  an  appellate  tribunal,  and  it  is  incumbent  on  the  party 
asking  for  a  revision  of  the  Chancellor's  judgment  to  satisfy 
this  Court  that  he  has  miscarried.  It  is  not  enough  that  this 
Court  may  have  misgivings  as  to  the  result  which  has  been 
attained.  But  it  is  objected  that  the  law  Judge  received  evi- 
dence which  should  not  have  been  admitted,  qnd  that  on  this 
ground  the  Chancellor  should  have  ordered  a  new  trial.  This 
subject  is  very  fully  treated  in  Lj/les  vs.  Lyles,  1    Hill  Ch., 


APPEALS  IN  EaUITY.  81 

Columbia,  May,  1859. 

76,  It  is  not  like  a  motion  for  a  new  trial  at  the  other  end 
of  the  hall.  The  issue  is  directed  for  the  purpose  of  satisfy- 
ing the  cinscicncc  of  the  Chancellor,  and  if,  upon  a  review 
of  the  competent  testimony,  that  object  has  been  attained, 
the  Chancellor  is  not  bound  to  reject  the  verdict,  because,  in 
his  opinion,  the  Judge  erred  in  law  on  the  admissibility  of  a 
part  of  the  evidence.  In  this  case  there  was  testimony 
besides  that  to  which  objection  has  been  taken  ;  and  we 
cannot  say  that  it  was  not  sufficient  to  have  satisfied  the 
Chancellor  with  the  result. 

The  second  ground  of  appeal  insists  that,  in  any  view,  the 
administrator  is  not  entitled  to  the  rents  and  profits  of  the 
real  estate,  but  that  they  belong  to  the  heirs-at-law  of  the 
intestate.  The  rents  and  profits,  which  accrued  during  the 
lifetime  of  the  intestate,  belong  to  his  personal  representative, 
and  not  to  liis  heirs.  After  that  period,  the  right  to  the  rents 
and  profits  acconipanies,  of  course,  the  inheritance.  The 
decretal  order  upon  this  point  is  not  very  distinct,  but  it 
must  be  so  construed.  And  this  furnishes  an  answer  to  the 
seventh  ground.  As  the  right  to  an  account  of  the  rents 
and  profits  which  accrued  during  intestate's  lifetime  would 
belong  to  the  administrator,  lie  was  entitled  to  an  inquiry  as 
to  the  validity  of  the  deed. 

It  remains  to  notice  the  defence  of  the  statute  of  limita- 
tions, very  faintly  urged  at  this  hearing.  It  has  been  often 
reiterated  that  proceedings  in  this  Court  are  not  within  the 
statute  of  limitations,  but  that  this  Court,  generally,  adopts 
this  period  as  a  bar  to  equitable  demands  from  analogy  to 
the  statute.  Sometimes,  however,  a  shorter  period  has  been 
held  to  preclude  the  plaintifl^,  as  in  the  case  of  Kir/cscy  vs. 
Keith,  heard  at  this  sittings.  And  where,  from  the  circum- 
stances, it  would  be  inequitable  for  the  defendant  to  insist  on 
the  lapse  of  time,  this  Court  is  not  bound  to  cnfi)rce  the  bar. 
The  jury  have  found  imt  only  that  "  the  deeds  were  procured 
to  be  executed  by  misrepresentation  and  fraud,"  but  that  the 
intestate  "  was  not  of  sufficient  capacity  to  execute  the  deeds." 


32  APPEALS  IN  EaUlTY. 

Kirkpatrick  vs.  Atkinson. 

The  intestate  always  retained  possession,  and  it  was  not  sug- 
gested that  his  capacity  subsequently  improved.  Under 
these  circumstances  he  could  not  be  expected  to  have  known 
his  wrongs,  or  to  have  adopted  the  proper  means  of  redress. 
The  plaintiff  instituted  these  proceedings  soon  after  taking 
out  letters  of  administration,  and  within  four  years  from  the 
death  of  his  intestate. 

It   is  ordered  and  decreed,  that  the  decree  of  the  Circuit 
Court  be  affirmed,  and  the  appeal  dismissed. 

Johnston  and  Wardlaw,  CC,  concurred. 

Appeal  dismissed. 


APPEALS  IN   EaUlTV.  3:J 


Columbia,  May,  1S59. 


William   Kirksey,   Jr.,  vs.   Executors    W.   L.  Keith    and 

OTHERS. 

Pleadings — Limitations,  Statute  of — Husband  and  Wife. 

Where  a  party  files  a  bill  to  set  aside  his  own  deed,  on  the  ground  of  duress, 
and  more  than  four  years  have  elapsed  since  the  deed  was  executed,  if  he 
wishes  to  avoid  the  ed'ect  of  his  lachea  by  showing  that  the  duress  continued 
after  the  deed  was  executed,  he  must  malce  the  question  in  his  pleadings  and 
by  evidence  at  the  trial. 

Upon  demands  purely  legal,  the  Court  of  Ecjuity  follows  the  decisions  at  law  in 
applying  the  bar  of  the  statute  of  limitations;  hut  where  the  peculiar  remedies 
of  the  (^oiirt  are  sought,  a  shorter  lime  than  the  legal  bar  may  be  sufficient  to 
prevent  the  Court  from  giving  relief. 

Where  a  husband  sues  his  wife,  and  the  bill  is  talcen  iivo  confesao  against  her,  the 
Court  is  not  l)ounil  by  her  admission,  hut  may  treat  the  case  very  much  as  if 
slie  were  an  infant,  and  hold  the  husband  barred  by  his  laches  in  applying  for 
relief. 

BEFORE  WARDLAW.  CIT.,  AT  PICKENS,  JUNE,  1&5S. 

The  decree  of  his  Honor,  the  Circuit  Chancellor,  is  as  fol- 
lows : 

Wardlaw,  Ch.  On  March  6,1854,  William  Kirksey,  Jr. 
released  and  conv^eyed  to  W.  L.  Keith,  nncle  of  grantor's 
wife,  three  houses  and  lots  in  the  village  of  Pickens,  and  the 
distributive  share  of  said  William  in  the  estate,  real  and  per- 
sonal, of  his  brother,  Silas  Kirksey,  deceased,  in  the  hands  of 
said  W.  L.  Keith,  as  administrator,  in  trust  for  the  use  of  said 
William's  wife,  Eady  Catharine,  and  his  children,  Rebecca 
and  Joseph  Brown;  with  power  in  said  W.  L.  Keith  to  sell 
and  re-invest  said  estate  for  the  benefit  of  the  beneficiaries, 
and  also  to  appoint  another  trustee  in  his  stead  to  act  for  said 
wife  and  children.  On  May  15,  1856,  W.  L.  Keith,  as  trus- 
tee, sold  and  conveyed  the  village  lots  to  Alexander  Bryce, 
4 


:U  APPEALS  IN  Eauri'Y. 


Kirksey  vs.  Keith. 


Senior,  for  the  price  of  $610.  W.  L.  Keith  died  May  20, 
1856,  leaving  a  will,  of  which  Elizabeth  B.  Keith,  Elliott 
M.  Keith  and  Thomas  J.  Keith,  are  executors;  and  at  his 
death  he  had  not  exercised  the  power  of  appointing  a  substi- 
tute or  trustee;  nor  had  he  fullyadministered  the  goods  and 
credits  of  said  Silas  Kirksey,  deceased ;  and  of  such  as  were 
unad ministered,  Frederick  N.  Garvin  became  administrator. 

On  May  3,  1S5S,  William  Kirksey,  Jr.  filed  this  bill,  mak- 
ing his  wife  and  children,  the  executors  of  W.  L.  Keith,  and 
the  administrator,  Garvin,  defendants;  in  which  he  alleges 
that  said  deed  of  trust  was  obtained  from  him  by  fraud  and 
duress  practised  by  said  W.  L.  Keith,  and  prays  that  the  deed 
may  be  set  aside  and  cancelled ;  that  the  executors  of  W.  L. 
Keith  may  account  for  and  pay  over  to  him  the  proceeds  of 
the  lots  sold,  and  that  they  and  Garvin  may  likewise  account 
and  pay  his  portion  of  Silas  Kirksey's  estate  in  their  hands 
and  control.  Elizabeth  and  Elliott,  two  of  the  executors  of 
Keith,  in  separate  answers,  admit  the  importunity,  but  deny 
any  fraud  or  duress  of  their  testator  concerning  the  execution 
of  the  deed  ;  a  formal  answer  is  put  in  by  next  friend  for  the 
children  of  plaintiff,  they  being  infants  ;  and  the  bill  is  taken 
pro  confesso  against  the  wife,  Eady  C.,  and  against  T.  J.  Keith 
and  F.  N.  Garvin. 

It  is  considered  that  such  duress  is  proved  in  this  case  as 
to  render  the  deed  voidable,  and  that  no  positive  confirmation 
by  the  grantor  is  establisheA  Sto.  Eq.  J.,  239  and  n  ;  Gregg 
vs.  Harllee.  Dud.  Eq.,  42.  It  is  unnecessary  to  repeat  the 
words  of  the  witnesses,  as  a  summary  of  the  evidence  will 
suffice:  W.  L.  Keith  had  been,  at  the  time  of  his  death,  for 
twenty-eight  years  Clerk  of  the  Common  Pleas  for  Pickens, 
and  he  possessed  great  influence  in  his  region.  William 
Kirksey  is  civil  and  intelligent  when  sober,  but  he  was,  about 
1854,  addicted  to  intemperance,  and  when  drunk  disposed  to 
violence.  On  January  10,  1854,  William  Kirksey  was  arrest- 
ed and  committed  to  jail  on  a  peace  warrant  issued  by  W. 
L.  Keith,  as  magistrate  ex-officio,  based   on  information  by 


APPEALS  IN  EaUITY.  85 

Columbia,  May,  1S59. 

Kirksey's  wife.  On  February  17,  1S54,  Kirksey  entered  ini> 
a  recognizance  to  keep  the  peace  before  W.  J.  Ganti,  a  magis- 
trate, himself  in  the  sum  of  $1,500,  with  seven  sureties,  each 
in  the  sum  of  |250,  and  was  discharged  from  imprisonment. 
He  was  brought  back  in  three  or  four  days  afterwards  by  L. 
C.  Craig,  one  of  his  sureties,  and  surrendered  to  the  clerk, 
who  took  him  to  jail  without  new  warrant,  and  he  remained 
in  confinement  until  he  executed  the  deed,  when  he  was  dis- 
charged on  his  own  recognizance  by  Keith.  Throughout 
the  imprisonment,  W.  L.  Keith  frequently  and  strongly  urged 
Kirksey  to  make  a  deed  of  trust  for  the  benefit  of  his  family, 
and,  until  this  purpose  was  effected,  obstructed  his  enlarge- 
ment as  far  as  practicable.  He  dissuaded  Mr.  Parsons,  now 
ordinary,  and  Mr.  Hagood,  now  clerk,  who  were  inclined  to 
become  Kirksey's  sureties  in  a  recognizance  for  his  good 
behavior,  from  interference  in  his  behalf  until  he  should  exe- 
cute the  deed,  insisting  that  the  sum  of  the  recognizance 
should  be  .^5,000,  at  least,  and  threatening  to  prosecute  for 
estreat  in  case  of  any  breach  ;  promising,  at  the  same  time, 
to  discharge  the  prisoner  on  his  own  recognizance,  if  he 
would  execute  the  deed.  He  induced  Sheritf  Hryce  to  with- 
draw an  indulgence  he  had  granted  to  the  prisoner  on 
account  of  failing  health,  of  changing  his  cell  in  the  upper 
story  of  the  jail  to  the  lower  room,  saying  that  if  Kirksey 
were  confined  he  would  make  the  assignment  as  he  ought  to 
do;  and  he  said  to  the  Sheriff  when  the  deed  was  executed, 
that  Kirksey  would  have  made  it  before  if  he  had  been  kept 
in  the  upper  cell.  Kirkrcy  at  first  refused  to  execute  the 
deed,  declaring  he  wt)ul(l  ratlu'r  rot  in  jail,  hut  after  his 
Fiealth  had  sufl'ered,  he  said  to  the  Sheriff,  I  will  do  anything 
that  is  right  to  get  out  of  jail,  as  the  infernal  place  will  kill 
me.  This  was  reported  to  Keith,  and  he  took  the  deed  which 
had  been  previously  prepared,  to  the  jail,  and  read  it  to  Kirk- 
sey, who  assented  to  its  provisions;  and  the  parties  pro- 
ceeding to  the  Clerk's  oflice,  the  deed  was  executed  there 
in  the  presence  of  the  Sheriff  and  P.  Alexander,  as  attesting 


:>()  APPEALS  IN  EaUlTY. 

Kirksey  vs.  Keith. 

witnesses,  while  Kirksey  was  sober,  and  he  was  then  set  at 
large  on  his  single  recognizance.  This  is  dnress  in  its  most 
reprehensible  form,  namely:  under  color  of  law  by  one  of  its 
ministers.  This  Court,  however,  cannot  give  damages  for 
the  tort  of  Keith,  and  he  takes  no  pecuniary  interest  under 
the  deed  which  can  be  reached.  After  the  arrest,  plaintiff 
and  his  wife  lived  apart  for  about  nine  months,  but  their 
cohabitation  was  then  resumed  and  has  since  continued. 

If  the  plaintitf  had  made  timely  application  to  this  Court, 
he  might  well  have  been  entitled  to  the  relief  sought,  of  hav- 
ing the  deed  declared  void,  but  his  laches  creates  an  obstacle 
seemingly  insuperable.  He  acquiesced  in  the  instrument  for 
more  than  the  statutory  bar  of  four  years  after  the  duress 
had  been  removed,  without  clamor  or  suit.  As  to  the  chil- 
dren who  are  infants  and  take  beneficially  under  the  deed,  it 
can  hardly  be  controverted  that  the  Court  is  bound  to  inter- 
pose this  bar  in  their  behalf,  for  the  formal  answer  of  infants, 
submitting  their  rights  to  the  protection  of  the  Court,  is  never 
interpreted  as  waving  any  proper  defence,  which  should  be 
made  for  them  ;  and  I  think  one  under  the  disability  of  cov- 
erture is  entitled  to  the  same  protecting  interposition  of  the 
Court,  where  she  has  waived  no  right  by  separate  answer  put 
in  under  leave  of  the  Court,  nor  on  private  and  separate 
examination,  and  she  is  committed  only  by  an  order  pro 
co7ifessn  entered  lor  lack  of  answer.  Such  order  should  be 
rarely,  if  ever,  entered  against  a  married  woman  sued  sepa- 
rately, unless  in  case  of  great  contumacy  on  her  part  in 
refusing  to  make  any  defence;  and  certainly  her  defence, 
disclaimer  or  surrender,  is  most  regularly  made  by  answer 
filed  on  leave  of  the  Court.  It  is  said,  that  whenever  a  hus- 
band as  plaintiff  sues  his  wife  as  a  defendant,  he  elects  to 
treat  her  for  the  purposes  of  the  suit  as  a  fejne  sole,  and  she 
may  answer  as  a  feme  sole  without  leave  of  the  Court.  Sto. 
Eq.  PI.,  sec.  17.  But  this  privilege  of  the  wife  is  not  to  be 
turned  to  her  disadvantage,  nor  is  she  to  be  construed  as 
admittins   whatever  slie   forbears  to   answer,     it   is  at  least 


APPEALS  IN  EanrV.  :37 

Columbia,  May.  1S59. 

certain  that  it  is  in  ihe  discretion  of  the  Chancellor  to  deter-' 
mine  what  evidence  shall  be  required  to  prove  the  demand  of 
a  bill  taken  j^ro  confcsso.  Steam  P.  Co.  vs.  Roger,  riiev.  Eq.. 
48.  And  I  am  not  content  in  this  case  wilh  llio  cvidoiKn-!  (^t 
the  wife's  waiver  or  surrender  o{  her  interests  under  th<i 
deed.  The  settlement,  although  unfairly  produced,  is  fair  in 
its  provisions.  Upon  proper  appUcation,  a  trustee  may  be 
appointed  for  the  wife  and  children  of  the  grantor. 

It  is  ordered  and  decreed  that  the  bill  be  dismissed,  but 
without  costs  as  to  the  executors  of  W.  L.  Keith. 

The  complainant  appealed  on  the  grounds  : 

1.  Because  it  is  respectfully  submitted  that  the  comi)lain- 
ant  did  not  acquiesce  in  the  instrument  sought  to  be  avoided, 
for  more  than  four  years  after  the  duress  had  been  removed. 

2.  Because  the  statutory  bar  was  incomplete  in  its  opera- 
tion at  the  time  the  complainant  applied  to  this  Court  for 
relief,  and  it  is,  therefore,  inapplical)le  to  his  case. 

3.  Because  there  was  no  sufficient  acquiescence  in  the 
instrument,  on  the  part  of  the  complainant,  either  in  point  (  f 
time,  or  by  deed  or  act,  to  bar  him  from  the  aid  of  this  Com  t 
to  avoid  the  said  instrument. 

4.  Because  the  order,  pro  con/esso,  against  Eady  Kirksey, 
the  wife  of  tlie  complainant,  was  regular  and  binding  upon 
her. 

Heed,  IVilkes,  for  appellant. 

Keith,  Orr,  contra. 

The  opinion  of  the  Court  was  delivered  by 

Wardlaw,  Cn.  The  first  ground  of  appeal  insists,  that  the 
plaintiff  did  not  acquiesce  in  the  deed  sought  to  be  cancelled, 
for  more  than  four  years  after  the  duress,  under  which  it  had 
been  executed,  had  been  removed.  It  is  statt^l  in  the  argu- 
ment here,  in  support  of  this  ground,  that  the  undue  influ- 
ence of  the  grantee,  VV.  L.  Keith,  over  the  plaintifl',  continued 


88  APPEALS  IN  EaUITY. 

Kirksey  vs.  Keith. 

during  the  life  of  the  former,  and  ceased  only  at  his  death, 
wliieh  Imppened  two  years  before  the  bill  was  filed.  The 
con  elusive  reply  is,  that  the  pleading  of  plaintiff  assails  the 
the  deed  exclusively  for  duiess  preceding  and  attending  the 
execution  of  the  deed  ;  and  that  at  the  trial  tiiere  was  no 
offer  of  proof  of  duress  or  malign  influence  afterwards.  The 
case  in  this  respect  is  settled  by  the  doctrine  of  Beck  vs.  Sear- 
son,  8  Rich.  Eq.,  130. 

The  third  ground  of  appeal  additionally  insists  that  there 
was  no  acquiescence  of  the  plaintifi',  by  act  or  deed,  barring 
him  from  relief  in  this  Court.  The  decree  does  not  proceed 
on  the  affirmation  of  any  such  fad ;  contrariwise,  concedes 
that  there  was  no  positive  confirmation  of  the  deed  by  the 
grautor.  What  is  treated  as  acquiescence  is  simply  the  for- 
l:)earance  of  the  plaintiff  for  four  years  and  two  months  to 
institute  any  suit  or  plaint.  It  was  the  laches  or  default  of 
the  plaintiff,  not  his  active  misconduct,  which  was  considered 
a  bar  to  his  relief  We  are  not  convinced  of  error  in  the 
Chancellor  in  this  respect. 

The  second  ground  of  appeal  affirms  that  the  bar  of  the 
statute  of  limitations  was  incomplete  in  duration  when  the 
bill  was  filed.  This  means  and  implies  that  one  who  pursues 
an  estate  for  any  claim  in  equity,  is  entitled,  in  addition  to 
the  four  years  allowed  by  the  statute  of  limitations,  to  nine 
months  for  the  commencement  of  his  complaint  by  bill, 
])ecause,  under  the  Act  of  1787,  no  action  can  be  instituted 
tor  nine  months  after  the  death  of  a  testator  or  intestate  for 
recovery  of  any  debt  of  the  deceased.  It  seems  to  be  the 
doctrine  of  the  Law  Court  that  the  effect  of  the  latter  Act  is 
to  prolong  the  barring  term  of  the  statute  of  limitations  as  to 
all  suils  for  nine  months,  wherever  the  representative  is 
exempt  from  action  for  this  fraction  of  a  year  for  recovery  of 
a  debt;  yet  in  the  last  case  on  the  po'ini,  Lata  ton  vs.  Bowman, 
2  Strob.,  190,  one  member  of  that  Court  placed  his  concur- 
rence entirely  on  the  score  of  authority,  avowing  his  belief 
that  the  result  was  against  principle.     It  is  plain  that  neither 


APPEALS  IN  EQUITY.  39 

Columbia,  May,  1S59. 

the  Statute  of  limitations  nor  the  Act  of  17S7  appHes,  in 
express  terms,  to  the  Court  of  Equity;  yet  in  avoidance  of 
any  appearance  of  conflict  between  co-ordinate  tribunals,  we 
would  follow  here  the  decisions  of  the  Law  Court  as  to 
demands  strictly  legal.  I  have  sufficiently  expressed  my 
views,  as  a  single  Judge,  concerning  the  operation  of  the  Act 
of  17S7,  as  to  this  Court,  in  the  case  of  Sollee  vs.  Croft,  7 
Rich.  Eq.,  34,  and  as  to  the  statute  of  limitations  in  White  vs. 
Bennett,  lb.,  260.  We  follow  the  statute  of  limitations  in 
positive  bar  of  legal  demands,  whether  in  obedience  or 
analogy,  it  is  immaterial  to  consider;  but  it  has  certainly 
never  been  authoritatively  intimated  in  this  Court  that  we 
could  not  bar  the  peculiar  remedies  of  this  Court  at  a  term 
short  of  the  term  of  the  statute.  We  exact  diligence  in 
plaintiffs.  The  Chancellor  in  his  decree  barred  the  plaintiff 
for  his  laches,  and  not  by  the  terms  of  the  statute  of  limita- 
tions. The  doctrine  on  this  subject  is  well  stated  by  C.  J. 
Taney,  in  McKnight  vs.  Taylor,  17  Pet.,  202:  "It  is  not 
merely  on  the  presumption  of  payment  or  in  analogy  to  the 
statute  of  limitations  that  a  Court  of  Chancery  refuses  to  lend 
its  aid  to  stale  demands.  There  must  be  conscience,  good 
faith  and  reasonable  diligence  to  call  into  action  the  powers 
of  the  Court.  In  matters  of  account,  where  they  are  not 
barred  by  the  act  of  limitations.  Courts  of  Equity  refuse  to 
interfere  after  a  considerable  lapse  of  time,  from  considera- 
tions of  public  policy,  and  from  the  difficulty  of  doing  entire 
justice  when  the  original  transactions  have  become  obscure 
by  time,  and  the  evidence  may  be  lost.  The  rule  on  this 
subject  is  settled  by  Piatt  vs.  Valtier,  9  Pet.,  416,  and  where 
conscience,  good  faith  and  reasonable  diligence  are  lacking,  a 
Court  of  Equity  is  passive  and  does  nothing;  and  therefore 
from  the  beginning  of  Equity  Jurisdiction,  there  was  always 
a  limitation  of  suit  in  that  Court."  V.  C.  Wigram  supports 
this  doctrine  in  3  Hare,  357,  Tat  am  vs.  fflllia/ns.  In  our 
own  case  of  White  vs.  Bennett,  7  Rich.  Eq.,  260,  a  vendee, 
suing  for  specific  performance,  was  held  to  be  barred  by  his 


40  APPEALS  IN  EaUITY. 

Kirksey  vs.  Keith. 

/aches  for  two  years  and  three  months.  This  case,  like  that, 
belonged  to  the  peculiar  remedies  of  this  Court.  It  should 
be  borne  in  mind  that  the  person  whose  death,  in  this  case, 
is  supposed  to  prolong  the  term  of  the  statute,  is  a  naked 
trustee,  and  that  his  representatives  are  not  pursued  for  any 
relief  out  of  his  estate. 

On  the  fourth  ground  we  consider  it  unnecessary  to  add  to 
the  remarks  in  the  decree. 

It  is  ordered  and  decreed  that  the  appeal  be  dismissed,  and 
the  decree  be  affirmed. 

DuNKiN,  Ch.,  concurred. 

Decree  affirmed^ 


APPEALS  IN  EQUITY.  41 


Columbia,  May,  1859. 


C.  R.  Bryce,  Ex'or,  vs.  G.  S,  Bowers  and  John  Stork. 

Pleading — Parities  —  Alortgage  —  Foreclosure  —  Jisfiignee — 
Presu  mp  t  io  n — Pay  men  t. 

Vi  mortgaged  land  to  A,  to  secure  the  payment  of  a  bond,  and  afterwards  con- 
veyed the  land  to  C,  who  conveyed  to  D.  B,  then,  assigned  his  estate  for  the 
benefit  of  his  creditors,  and  died  insolvent.  On  bill  filed  by  A,  against  C 
and  D,  for  foreclosure,  no  demurrer  was  filed,  for  lack  of  proper  parlies.  Held: 
That  defendants  could  not  insist,  at  the  hearing,  that  the  personal  represent- 
ative of  B  should  be  made  a  party  to  the  bill. 

That  the  assignee  of  B  was  not  a  necessary  party  to  the  bill. 

Qitare,  whether  to  a  bill  against  the  parly  in  possession  of  the  mortgaged  land, 
for  foreclosure  of  the  mortgage,  the  i)ersonal  representative  of  the  deceased 
mortgagor  is,  in  any  case,  a  necessary  party. 

Where  a  mortgage  has  been  duly  registered,  a  subsequent  purchaser  of  the 
land  will  not  be  protected  by  presumptions  of  payment  arising  from  the  lapse 
of  time,  where  the  mortgagor  himself  is  not  so  protected — he  having  made 
payments  which  rebut  the  presumption. 

A  promissory  note,  not  expressly  taken  in  payment  of  a  bond,  held,  not  to  be 
payment. 

BEFORE  DARGAN,  OIL,  AT  RICHLAND,  JUNE,  1858. 

The  decree  of  his  Honor,  the  Circuit  Chancellor,  is  as  fol- 
lows : 

Dargan,  Ch.  On  February  21,  1833,  James  Fenton  exe- 
cuted a  mortgage  to  John  Bryce,  of  a  lot  in  Columbia,  to 
secure  a  bond  given  by  said  Fenton  to  said  Bryce  for  $500, 
dated  21st  February,  1833,  payable  the  1st  of  January,  1834, 
and  bearing  interest  from  the  date.  The  interest  on  this 
debt  was  paid  annually,  and  with  great  punctuality,  up  to 
1st  July,  1855.  About  that  time  Fenton  had  become  insol- 
vent, and  on  the  4th  June,  1855,  he  made  an  assignment  to 
Henry  Davis  of  the  most  of  his  estate  for  the  payment  of  his 
debts,  in  a  certain  order  or  classification  therein   prescribed. 


42  APPEALS  IN  EaUITY. 


Bryce  vs.  Bovvers. 


Bryce's  debt,  secured  by  the  mortgage  as  aforesaid,  was 
embraced  in  the  first  class  of  preferred  debts  ;  it  was  not 
specifically  provided  for,  but  the  assignee  was  directed,  out  of 
the  proceeds  of  the  sale  of  the  property  assigned,  to  pay, 
"  the  several  mortgages,  judgme^its  and  executions  now  exist- 
ing and  in  force  against  me,  according  to  their  legal  order 
and  jjriority." 

On  or  about  the  12th  February,  1850,  Fenton,  for  the  con- 
sideration of  $1,200,  sold  and  conveyed  to  G,  S.  Bowers  the 
same  lot  which  he  had  previously  bought  from  and  mortgaged 
to  Bryce.  He  took  a  bond  and  mortgage  for  $1,000  of  the  pur- 
chase money,  |200  of  the  same  having  been  paid  in  cash. 
This  debt  was  subsequently  paid  in  full,  and  satisfaction 
entered  22d  October,  1852.  Bowers  had  possession  of  and 
lived  on  the  premises  from  the  time  of  his  purchase  in  Feb- 
ruary, 1850,  for  four  or  five  years,  and  afterwards  rented  it  to 
his  co-defendant,  John  Stork,  until  the  11th  day  of  March, 
1857,  when  he  sold  and  conveyed  the  said  lot  to  the  said 
John  Stork  in  fee,  with  a  covenant  of  warranty  as  to  the  title. 
Stork,  at  the  date  of  the  filing  of  the  bill,  was  in  possession, 
and  still  is. 

The  mortgage  of  Fenton  to  Bryce  was  duly  recorded.  No 
express  notice  either  to  Bowers  or  Stork  was  proved,  nor  is  it 
believed  there  was  any. 

This  is  a  bill  filed  by  C.  R.  Bryce,  the  Executor  of  John 
Bryce,  to  foreclose  the  mortgage  against  Bowers  and  Stork. 
The  latter  is  a  necessary  party,  and  so,  perhaps,  is  Bowers. 
The  legal  representatives  of  Fenton  should  also  have  been 
made  parties  to  these  proceedings.  So  invariably  is  this  rule 
observed,  and  so  essentially  important  is  it  in  many  cases, 
that  I  doubt  the  propriety  of  my  going  on  with  the  case 
without  Fenton  being  represented.  But  as  Fenton  made  an 
assignment,  and  died  utterly  insolvent,  I  suppose,  (but  do  not 
know,)  that  he  has  no  legal  representatives.  But  as  the 
defendants  did  not  plead  this  matter  in  abatement,  nor  inter- 
pose an  objection  in  any  form  on  this  ground,  I  do  not   feel 


APPEALS  IN  EaUlTY.  4^ 


Columbia,  May,  1S59. 


that  my  duty  calls  upon  me  to  start  the  objection,  which  cer- 
taiiih^  would  have  prevailed  if  it  had  been  made.  If  a  decree 
for  foreclosure  should  be  made,  and  the  land  should  sell  for 
more  than  enough  to  satisfy  Bryce's  mortgage,  the  surplus 
would  not  belong  to  Fenton's  legal  representatives,  nor  to  his 
assignee — it  should  go  to  Stork  and  Bowers,  and  they  are 
both  parties  before  the  Court.  We  have,  t/ien,  all  persons 
before  the  Court  who  have,  or  can  have,  any  interest  in  the 
property,  and  substantial  justice  can  be  done.  In  a  case  like 
fhis,  it  would  be  a  mere  matter  of  form  to  make  the  legal 
representatives  of  Fenton  parties  to  the  cause. 

This  case  has  been  referred  to  the  commissioner  to  report 
as  to  the  mortgage,  and  the  amount  due  thereon  ;  also,  to 
report  any  special  matter.  In  his  report,  the  commissioner 
states  the  amount  due  upon  the  mortgage.  He  also  reports 
the  evidence  as  adduced  by  either  party  on  the  questions 
raised,  and  recommends  that  the  whole  amount  due  on  the 
mortgage  be  paid  by  sale  of  the  mortgaged  premises. 

The  defendants  except  to  the  report  of  the  commissioner, 
on  the  ground  that  the  lien  of  the  mortgage  was  waived  or 
lost  by  the  plaintiti''s  testator: 

1.  Because  the  said  John  Bryce  permitted  his  mortgage  to 
fade  away,  and  perish  by  lapse  of  time,  so  far  as  the  defend- 
ants are  concerned. 

Where  there  is  a  debt  secured  by  a  mortgage  (be  it  of  lands 
or  chattels)  which  would  be  subject  to  the  plea  of  the  statute 
of  limitations,  or  to  the  presumption  of  satisfaction  arising 
from  the  lapse  of  time,  but  for  promises,  payments  or  other 
transactions  between  the  mortgagor  and  mortgagee,  keeping 
the  debt  alive  as  between  themselves,  will  the  lapse  of  twenty 
years  protect  a  subsequent  purchaser  or  mortgagee,  affected 
only  with  implied  notice,  from  the  lien  of  the  first  mortgage? 
That  is  the  (piestiou  intended  to  be  raised  on  this  exception. 

After  the  lapse  of  twenty  years,  llie  debt  due  to  Bryce  was 
neither  actually  paid,  nor  was  it  subject  to  the  presumption  of 
satisfaction.     Not  a  dollar  of  the  principal   had  been  paid; 


44  APPEALS  IN  EaUITY. 

Bryce  vs.  Bowers. 

but  the  annually  accruing  interest  was  punctually  paid  up  to 
a  short  period  before  the  death  of  both  parties.  Here  is  a 
third  party  claiming  the  benefit  of  a  presumption  which  has 
been  most  completely  rebutted.  This  is  a  doctrine  which 
only  applies  as  between  creditor  and  debtor,  and  it  seems  to 
me  absurd  and  unmeaning  to  apply  it  otherwise. 

A  creditor  has  a  debt  secured  by  a  mortgage  as  to  which 
he  is  perfectly  satisfied  with  the  payment  of  the  interest,  or 
the  performance  of  other  conditions  which  the  parties  may 
agree  on;  he  is  content  to  let  the  principal  remain  unpaid; 
twenty  years  elapse;  no  presumption  of  satisfaction  can  arise 
as  between  the  mortgagor  and  mortgagee,  because  of  their 
agreement.  But  a  third  party,  who  is  a  subsequent  pur- 
chaser or  mortgagee,  steps  in  and  says:  Though  your  debtor 
cannot  claim  the  benefit  of  the  presumption  of  satisfaction,  I 
can  ;  you  advanced  your  money  on  the  security  of  a  mort- 
gage which  is  admitted  on  all  sides  to  be  unpaid.  I  have 
laid  out  my  money  subsequently  in  the  purchase  of  the  same 
property,  and  though  in  this  Court  the  doctrine  prevails, /?r/or 
171  tempore  potior  est  i?i  Jure,  yet  my  equity  is  higher  than 
yours.  I  purchased  without  notice  of  your  prior  claim,  and 
therefore  my  claim  should  be  preferred.  The  colloquy  might 
be  supposed  to  be  further  extended,  by  the  mortgagee  saying: 
I  did  give  you  notice  in  the  way  the  law  prescribes,  and  in 
the  only  way  in  which  it  was  possible  for  me  to  have  given 
you  notice.  I  did  not  personally  know  you  (as  the  case  may 
be),  or  that  you,  among  all  the  living  sons  of  Adam,  contem- 
plated purchasing  the  lot  of  land  covered  by  my  mortgage; 
so,  proceeding  in  the  way  the  law  directs,  and  the  only 
possible  way,  I  gave  notice  to  all  the  world  that  my  mortgage 
existed  ;  you  had  the  implied  notice,  which  is  as  strong  and 
effectual  where  it  exists  as  express  notice,  and  much  more 
easily  proved.  To  this,  the  only  response  of  the  second  pur- 
chaser would  be  an  admission  that  he  had  notice,  but  he  did 
not  know  that  the  debt  was  unsatisfied.  In  a  case  like  the 
present,  then,  the  complaint  dwindles  down  to  this:  the  sec- 


APPEALS  IN  EaUlTY.  45 

Columbia,  May,  lSr)9. 

011(1  purchaser,  knowing  of  the  existence  of  the  mortgage, 
did  not  know  but  that  it  may  have  been  satisfied.  How  is 
such  notice  to  be  given  ?  To  individuals  ?  That  is  absurd. 
In  the  newspapers  ?  That  would  be  inefTectnal.  By  the 
public  registry?  Where  is  the  law  which  requires  a  mort- 
gagee to  give  notice  by  registry  that  a  mortgage,  otherwise 
outstanding  and  in  force,  is  not  satisfied  ? 

But  if  the  lapse  of  twenty  years,  after  a  bond  debt  secured 
by  mortgage  is  due  (though  kept  alive  and  of  force  as 
between  mortgagor  and  mortgagee,  by  payments  or  acknowl- 
edgments), renders  such  mortgage  inoperative,  and  defeats 
its  lien  as  to  a  subsequent  purchaser  with  only  constructive 
notice,  stilly  the  facts  of  this  case  do  not  come  up  to  the 
terms  of  the  proposition.  The  debt  of  Fenton  to  Bryce  was 
due  1st  January,  1834.  On  the  1st  January,  1854,  it  would 
have  been  subject  to  the  presumption  of  satisfaction  from  the 
lapse  of  twenty  years,  but  for  the  annual  payment  of  the 
interest.  On  the  12th  February,  1850,  Fenton  conveys  the 
mortgaged  premises  to  the  defendant,  Bowers.  It  wanted, 
then,  nearly  four  years  of  the  time  necessary  to  create  the 
legal  presumption  on  which  the  defendant  relied.  If  the  doc- 
trine were  true,  it  does  not  apply  in  this  case. 

It  is  proper  for  me  to  state,  that  I  bear  in  mind  the  fact, 
that  the  legal  question  raised  in  this  exception  is  pending 
before  the  Court  of  Errors  in  IVright  and  Eaves,  and  others, 
and  nothing  that  I  have  said  here  is  to  conchide  my  judg- 
ment when  that  case  shall  come  up  for  decision. 

2.  That  said  Bryce  did  not  give  the  defendant  notice  of 
his  claim  of  lien  on  said  lot,  but  stood  by  and  saw  him 
purchase,  lake  possession  and  hold  it  for  a  number  of  years, 
without  giving  such  notice. 

The  language  of  this  exception,  I  apprehend,  is  not  in- 
tended to  he  taken  in  its  literal  sense.  There  is  no  pretence 
that  Bryce  actually  stood  by,  and  saw  Bowers  purchase,  &.c. 
The  parties  all  lived  in  the  same  town,  and  hence  it  was 
inferred    that  Bryce  was  aware  of  the   transaction   between 


40  APPEALS  IN  EaUITY. 


Bryce  vs.  Bowers. 


Fenton  and  Bowers,  from  the  change  of  possession.  But 
there  is  no  evidence,  inferential  or  other,  that  Bryce  knew 
the  terms  on  which  Bowers  held. 

3.  Because  the  said  Bryce  did  not  take  or  accept  payment 
of  his  mortgage  out  of  the  money  raised  and  set  apart  in  the 
hands  of  Davis  for  him,  by  Fenton's  deed  of  assignment, 
which  was  fully  known  and  acquiesced  in  by  the  said  Bryce. 

There  is  controversy  about  a  large  portion  of  the  assets 
assigned.  For  a  great  part,  they  have  not  yet  been  realized, 
and  perhaps  never  will  be;  there  is  litigation  with  the  estnte 
of  Peay  still  pending  about  a  large  portion  of  the  assets. 
Bryce  was  not  bound  to  let  go  a  better  security  for  a  worse. 
To  compel  him  to  do  so  would  not  be  equitable.  Besides 
this,  why  might  not  the  creditors  of  Fenton,  for  whose  ben- 
efit the  assets  were  assigned,  say  to  Bryce:  "you  have  two 
lions  or  resources  from  which  to  satisfy  your  debt;  do  yoic 
resort  to  your  mortgage,  under  which  we  have  no  claim,  and 
leave  the  assigned  effects  to  us,  which  is  our  only  resource." 
What  answer  could  be  made  to  such  a  demand?  This  doc- 
trine is  never  applied,  except  to  the  claims  of  creditors  with 
liens.  Bowers  and  Stork  are  purchasers,  not  creditors  of 
Fenton.  If  they  are  creditors  at  all,  they  are  only  simple 
contract  creditors — their  claims  arising  under  a  breach  of  the 
covenant  of  warranty  of  title.  But  they  are  not  claiming 
under  the  character  of  creditors. 

4.  That  the  said  Bryce,  by  taking  from  Fenton  a  negotia- 
ble promissory  note  for  the  ainotint  of  the  mortgage,  and 
giving  him  further  time  of  payment  from  the  2d  of  April,  the 
date  of  the  note,  to  the  end  of  ninety  days  thereafter,  released 
and  discharged  said  mortgage. 

The  facts  bearing  on  this  exception  are  these:  On  the  2d 
April,  1855,  Fenton  made  a  note  to  Bryce  for  $500,  payable 
at  ninety  days,  which  note  was  endorsed  and  discounted  by 
Bryce  at  the  Commercial  Bank.  It  was  stipulated  by  Bryce 
that  if  this  note  was  paid  by  Fenton  at  its  maturity,  the 
mortgage  should  be   delivered    up   to  him  satisfied.     There 


APPEALS  IN  EaUlTY.  47 

Columbia,  May,  1859. 

was  no  contract  that  the  note  should  be  taken  in  payment 
or  satisfaction  of  the  mortgage,  or  that  the  time  of  payment 
shonid  he  extended  ;  but  simply  if,  or  when,  the  note  was 
paid,  it  should  operate  as  a  satisfaction  of  the  mortgage. 
Though  it  ma}''  have  been  in  violation  of  implied  faith,  there 
was  nothing  in  the  agreement  which  would,  in  law,  have 
prevented  Bryce  from  instituting  process  for  the  foreclosure 
of  the  mortgage  the  next  day  after  the  note  was  given.  A 
note,  though  given  for  the  same  debt,  is  not  a  satisfaction  of 
a  pre-existing  bond,  or  other  specialt\%  until  it  is  paid,  unless 
there  be  a  stipulation  to  that  effect.  Such  was  not  the 
understanding  of  the  parties  to  this  transaction.  It  wouUl  be 
absurd  to  suppose  a  shrewd  business  man,  or  any  one  whose 
capacity  was  above  that  of  an  idiot,  to  have  given  up  a  debt 
amply  secured  by  mortgage,  for  the  simple  note  of  hand  of 
his  debtor,  known  to  be  embarrassed,  if  not  insolvent. 

There  was  nothing  in  the  circumstances  which  attended 
this  transaction  that  would  operate  to  the  discharge  of  a 
surety,  if  there  had  been  one  to  the  note.  But  suppose  that 
a  .surc/^,  had  there  been  one,  would  have  been  discharged? 
Wliat  had  that  to  do  with  the  case?  Where  is  the  analogy? 
The  counsel  for  the  defendant  says,  in  his  argument,  that 
the  mortgaged  lot  is  the  surety!  I  can  understand  how 
land  may  be  a  security,  but  how  it  can  be  a  surety,  passes 
my  powers  of  comprehension. 

The  exceptions  to  the  report  are  overruled,  and  the  report 
is  confirmed.  And  it  is  ordered  and  decreed  that  the  mort- 
gage be  foreclosed,  and  that  the  mortgaged  premises  be  sold 
on  the  terms  recommended  by  the  commissioner  in  his  said 
report — said  sale  to  take  place  on  the  first  day  of  January, 
1859. 

The  defendants  appealed: 

1.  Because  the  plaintiff  should  have  made  the  legal  repre- 
sentative of  James  Fenton,  deceased,  or  at  least  Henry  Davis, 
his  assignee,  a  parly  defendant  to  his  bill  and  proceedings  in 


APPEALS  IN  EaUITY. 


Bryce  vs.  Bowers. 


this  Court,  to  foreclose  his  said  mortgage.  And  not  having 
made  either  the  one  or  the  other  a  party,  the  Court,  according 
to  its  usage  and  practice,  will  not  proceed  to  a  decree  in  the 
cause. 

2.  Because  each  and  every  one  of  the  exceptions  taken  by 
the  defendants  to  the  report  of  the  Commissioner,  against  the 
plaintiff 's  right  and  equity  to  foreclose  his  mortgage  on  the 
house  and  lot  in  question,  was  well  founded  and  fully  sus- 
tained by  the  pleadings  and  proofs,  and,  therefore,  should 
liave  been  sustained  by  the  Court. 

Banskett,  for  appellant. 

De  Saussure,  contra. 

The  opinion  of  the  Court  was  delivered  by 
Wardlavv^,  Ch.  The  bill  in  this  case  is  simply  a  bill  for 
foreclosure  of  a  mortgage,  and  does  not  seek  payment  of  the 
debt  from  the  defendants  beyond  the  estate  in  their  posses- 
sion subject  to  the  plaintiff''s  lien.  The  defendants  never 
contracted,  in  any  form,  to  pay  the  debt  claimed,  and  it 
would  have  been  absurd  and  unjust  to  pursue  them  nakedly 
for  this  purpose ;  but  they  acquired  estate  with  implied 
notice  of  an  existing  lien  upon  it  for  satisfaction  of  plaintiff"'s 
demand,  and  cannot  complain  of  the  enforcement  of  this 
limited  right.  In  the  first  ground  of  appeal,  defendants  insist 
that  the  personal  representative  of  the  deceased  mortgagor, 
or,  at  least,  the  assignee  of  his  estate,  by  deed  of  the  mort- 
gagor in  his  lifetime,  should  have  been  made  a  party  defend- 
ant. Personalty,  in  case  of  land,  is  the  primary  fund  for 
payment  of  debts  ;  and,  as  Courts  of  Equity  delight  to  do 
complete  justice,  and  not  by  fragments,  as  first  to  decree  the 
liability  of  the  heir  or  alienee  of  the  realty,  and  then  put  him 
by  another  bill  to  claim  reimbursement  out  of  the  personalty, 
they  usually  exact,  to  avoid  circuity  of  action,  that  in  suits 
concerning  the  bonds  or  covenants  of  one  deceased,  the 
executor  or   administrator,  as  well    as    the    heir,  devisee  or 


APPEALS  IN  EQUITY.  40 

Columbia,  May,  1859. 

alienee,  shall  be  a  party.  Knight  vs.  Knight,  3  P.  Wins., 
333  ;  Vdlk  vs.  Vernon,  2  Hill  Ch.,  256  ;  Drayton  vs.  Marshall, 
Rice  Eq.,  373.  Yet,  Courts  of  Equity  have  not  acted  on  this 
doctrine  ui  bills  simply  for  foreclosure;  for,  although  a  mort- 
gage is  a  debt  primarily  charged  on  the  personal  assets,  a 
mortgagee  is  not  bound  to  involve  himself  in  an  inlricate 
account  concerning  tlie  personalty  of  his  debtor,  and  may,  at 
his  option,  pursue  singly  his  real  security,  leaving  the  terre- 
tenant  to  his  remedies  for  reimbursement.  Duncomhe  vs. 
Hanslc}},  cited  by  Mr.  Cox,  3  P.  Wms.,  333  ;  Coop.  Eq.  Pi., 
3S  ;  Calv.,  Part.  167;  Stor.  Eq.  Pi.,  175,  176. 

In  some  of  the  English  cases,  and  in  our  own  case  of 
Drayton  vs.  Marshall,  a  distinction  is  intimated  as  to  tlie 
necessity  of  bringing  the  personal  representative  before  the 
Court,  between  bills  for  foreclosure  and  bills  for  the  sale  of 
the  mortgaged  realt\\  In  England,  bills  for  foreclosure  are 
usually  brought  to  quiet  the  estates  of  the  moitgagees,  simply, 
by  barring  ]iroceedings  of  the  mortgagors  for  the  equity  of 
rec^emption  :  but  here,  as  in  the  Irish  Chancery,  bills  of  fore- 
closure proceed  for  the  sale  of  the  mortgaged  premises.  In 
my  judgment,  so  far  as  the  making  of  parties  is  concerned, 
bills  for  foreclosure  here  stand  on  the  same  foot  as  in  Eng- 
land. Certainly  there  is  a  great  difference  in  procedure 
between  barring  tlie  rights  of  the  mortgagor  and  enforcing 
payment  of  the  debt  from  the  sale  of  the  mortgaged  premises; 
but  the  substantial  result  is  identical,  as  in  both  instances  the 
lien  is  enforced.  It  is  precisely  similar  to  the  difference  of 
practice  as  to  partition  and  dower,  always  specific  in  England, 
here  commonly  l)y  sale  or  assessment.  Whatever  may  be 
the  form  of  procedure  as  to  foreclosure,  the  same  propriety 
exists  of  exempting  the  mortgagee  from  the  necessity  against 
his  option  of  intermeddling  in  the  administration  of  the  per- 
sonalty. One  having  a  ready  remedy  should  not  be  delayed 
until  the  equities  of  all  interested  in  the  matter  should  be 
adjusted.  I  expressed  these  views  briefly  in  the  circuit  opin- 
ion  in    Ifyiglit  vs.  Eaves,  Ms.,   December,    1858,  and  they 


50  APPEALS  IN  EaUITY. 

Bryce  vs.  Bowers. 

were  not  disapproved  by  the  Court  of  Errors,  although  my 
learned  and  expert  associate,  Chancellor  Dnnkin,  did  express 
some  pieference,  that  in  addition  to  an  administrator  de  bonis 
no}i,  who  was  a  party  there,  representiftives  of  snrefies  of  for- 
mer administrations  of  the  morlgagor's  estate  slionld  be  made 
parlies  in  order  that  complete  justice  might  be  done.  That 
was  a  bill  for  foreclosure  against  the  alienee  of  the  mortgagor. 
In  S'cotl  Vfi.  Davis,  Ms.,  Columbia,  December,  1S56,  I,  122, 
the  representative  was  treated  as  an  unnecessary  party  in  a 
bill  for  foreclosure,  on  the  principle  of  the  case  of  Goodwin 
vs.  State  Bank,  4  Des.,  389. 

In  this  particular  case  it  may  not  be  necessary  to  rely  on 
the  general  doctrine.  The  defendants  do  not  demur  for  lack 
of  parties,  and  so  far  from  insisting  on  the  necessity  of 
making  Fenton's  personal  representative  a  party,  they,  by 
their  averments,  help  the  plaintiff,  suggesting  that  Fenton 
died  insolvent  and  intestate,  and  that  no  person  has  adminis- 
tered on  his  estate.  This  may  be  well  considered  as  waiving 
any  plea  that  an  executor  or  administrator  of  Fenton  shotild 
have  been  impleaded  by  the  plaintiff;  but  in  the  same  con- 
nection the  defendants  substantially  insist  that  the  assignee 
of  Fenton  should  be  a  party.  As  to  the  assignee  they  cannot 
be  considered  as  concluded  by  their  answer.  All  of  us  con- 
cur in  the  conclusion  that  the  assignee  was  not  a  necessary 
party,  but  there  is  difference  among  us  in  the  process  of 
reasoning,  by  which  this  result  is  attained.  It  is  proper  to 
avoid,  so  far  as  practicable,  discussion  of  matters  which  may 
be  hereafter  litigated.  If  the  plaintiff  were  in  the  first  class 
of  preferred  creditors,  whether  he  accepted  or  not  the  terms 
of  the  assignment,  within  the  time  limited,  as  the  Chancellor 
supposed,  then  the  defendants  might  have  paid  the  debt  and 
obtained  an  assignment  of  the  mortgage  entitling  themselves 
to  the  same  preference,  or  may  be  now  entitled  to  subrogation 
to  the  rights  of  the  mortgagee  on  payment  of  the  debt,  and  in 
this  view  the  defence  is,  to  a  great  extent,  unfructual  and  fan- 
ciful, and  should  be  disallowed  as  not  formally  pleaded.     If, 


APPEALS  IN  EQUITY.  51 

Columbia,  May,  1S59. 

however,  the  assignment  be  interpreted  as  in  trust  for  the 
payment  of  such  creditors  as  accepted  its  terms  in  proper 
time,  then  the  plaintiff  (or  the  defendants,  if  in  any  event  his 
substitutes,)  is  not  within  the  protection  of  the  deed  of  assign- 
ment, and  the  assignee  is  a  stranger,  and  consequently  an 
unnecessary  party.  Personally  I  am  not  involved  in  this  dilem- 
ma, for  I  believe  on  general  principles  that  the  mortgagee  at 
his  option  may  exclusively  pursue  his  real  security.  On  the 
other  questions  submitted,  we  consider  argumentation  un- 
necessary as  they  are  authoritatively  settled  by  the  case  of 
fF?'ii^ht  and  Eaves,  above  referred  to,  or  are  in  themselves 
plain. 

It  is  ordered  and  decreed  that  the  Circuit  decree  be  affirmed 
and  the  appeal  be  dismissed. 

Johnston  and  Dunkin,  CC,  concurred. 

DuNKiN,  Ch.  I  should  have  more  hesitation  as  to  the  pro- 
priety of  calling  in  the  assignee  of  James  Fenton,  if  I  thought 
that  the  mortgage  to  the  plaintitf's  testator  was  protected  by 
the  assignment.  But,  according  to  the  construction  which  I 
give  to  that  instrument,  the  assignee  was  required  only  to 
pay  olf  the  existing  liens  on  the  property  assigned  ;  and  for 
the  obvious  purpose  of  enabling  him  (the  assignee)  to  give  a 
clear  title  to  the  purchasers.  But  the  premises  mortgaged  to 
Bryce,  constituted  no  part  of  the  assigned  estate,  and,  besides, 
in  the  eighth  class  of  creditors,  the  note,  subsetiuently  given 
by  Fenton  for  the  mortgage  debt,  is  specifically  provided  for; 
why,  if  already  payable  in  class  No.  1  ?  But,  as  plaintiff's 
testator  never  accepted  the  terms  of  the  assignment,  he  would 
have  no  claim  under  this  latter  provision,  and,  therefore,  no 
right  to  which  the  defendants  could  be  subrogated. 

Decree  affirmed. 


52  APPEALS  IN  EaUlTY. 


Tomlinsoa  i-.?.  Tomlinson. 


Martha  Tomlinson  and  Thomas  Tomlinson,  Jr.,  vs.  Thomas 
Tomlinson  Sr.,  and  others. 

liehearing. 

Circuit  decree  set  aside  by  the    Circuit  Court,  and   rehearing  ordered  on  newlj' 
discovered  oral  testimony. 

BEFORE  JOHNSTON,  CH.,  AT  CHESTERFIELD,  FEBRUARY,  1859. 

In  this  case,  it  is  deemed  proper  to   publish   the  petition 
and  all  the  aflidavits  upon  which  the  case  was  heard. 
The  petition  is  as  follows: 

The  State  of  South  Carolina. 

To  their  Honors,  the  Chancellors  of  the  said  State: 
The  petition  of  Martha  Tomlinson  and  Thomas  Tomlinson, 
Jr.,  sheweth  that  Henry  M.  Tomlinson,  late  of  Chesterfield 
district,  died  intestate  on  the  1st  June,  1855,  and  administra- 
tion of  his  personal  estate  was  granted  to  your  petitioners, 
who  published  the  usual  notice  to  creditors,  and  a  few  days 
before  the  expiration  of  the  time  limited  therein,  Thomas 
Tomlinson,  Sr.,  preferred  a  claim  as  holder  of  a  promissory 
note  for  $8,000,  signed  by  W.  H.  Tomlinson,  agent,  bearing 
date  July  5th,  1853,  payable  to  the  order  of  tlie  said  Henry 
M.  Tomlinson  three  years  after  date,  and  endorsed  by  him 
in  blank,  and  required  of  your  petitioners,  as  administra- 
tors of  the  endorser,  payment  thereof;  that  your  petitioners 
had,  until  then,  never  known  or  heard  of  the  existence  of 
any  such  claim,  and  from  their  acquaintance  with  the  busi- 
ness of  their  intestate,  and  with  the  circumstances  of  all  the 
parties  (maker,  endorser,  and  holder.)  to  said  note,  were 
persuaded  that  the  said  note  and  its  endorsement  were  not 


APPEALS  IN  EaUlTY.  53 


Columbia,  May,  1S59. 


genuine,  or  not  boua  fide,  and  constitntod  no  valid  claim 
against  the  estate  of  their  intestate,  and  yonr  junitioners, 
therefore,  refnsed  to  pay  the  said  claim;  that  in  conseqnence 
of  the  large  claims  preferred  against  the  estate,  particniarly 
by  the  said  Thomas  Tomlinson,  Sr.,  and  suits  at  law  insti- 
tuted by  many  of  the  creditors,  your  petitioners  filed  their 
bill  in  your  Honorable  Court  about  the  25th  day  of  Novem- 
ber, A.  D.,  1S56,  against  the  said  Thomas  Tomlinson,  Sr., 
and  others,  creditors  and  distributees,  praying,  among  other 
things,  that  the  creditors  of  the  intestate  might  be  restrained, 
by  injunction,  from  suing  at  law,  and  required  to  prove  their 
demands  in  this  Court,  and  that  the  assets  might  be  mar- 
shalled and  the  estate  settled  here;  that,  by  an  order  made 
at  February  Term,  1857,  the  creditors  were  called  in,  and  the 
said  Thomas  Tomlinson,  Sr.,  among  others,  presented  his 
aforesaid  claim;  that,  impelled  by  their  conviction  aforesaid, 
your  petitioners  exerted  theniselves  to  the  utmost  to  discover 
something  in  relation  to  this  note  and  its  endorsement,  the 
transaction  in  which  it  originated,  the  consideration  for 
making  and  endorsing  of  it,  the  time  when,  the  party  from 
whom,  circumslanccs  under  which,  and  consideration  for 
which  the  said  Thomas  Tomlinson,  Sr.,  became  the  iiolder, 
but  owing  to  the  fact  that  one  of  your  petitioners  is  a  female, 
and  the  other  a  youth  just  grown  up,  and  not  of  age  at  the 
death  of  the  said  intestate,  his  father,  your  petitioners  labored 
under  great  disadvantages,  and  were  never  able  to  find  any 
person,  even  among  all  those,  clerks  and  others,  who  had 
been  most  intimately  connected  with  the  intestate  and  his 
business,  who  had  ever  known  or  heard  of  the  existence  of 
the  said  note;  that  application  for  information  on  these  sub- 
jects was  made  to  the  said  Thomas  Tomlinson,  Sr.,  himself, 
and  also  to  his  son-in-law,  Culpcjiper  Wadkins;  but  the  said 
Tiiomas  Tomlinson,  Sr.,  would  not  talk  on  the  subject,  and 
seemed  studiously  to  ward  off  all  attempts  to  get  information 
from  him,  and  the  said  Culpepper  Wadkins  either  disavowed 
all   knowledge  on  the  subject,  or  would   not  disclose   that  he 


54  APPEALS  IN  EaUlTY. 

Tomlinson  vs.  Tomlinson. 

had  any  knowledge  about  it;  that,  under  these  circumstan- 
ces, the  hearing  before  the  commissioner  and  before  the 
Circuit  Chancellor  came  on,  and  your  petitioners  were  neces- 
sarily restricted  in  their  resistance  to  this,  as  they  believe, 
most  unrighteous  demand,  to  a  contest  about  the  genuine- 
ness of  the  endorsement  and  the  handwriting  of  the  intestate; 
that,  on  this  point,  the  decision  of  the  commissioner  and  of 
the  Circuit  Court  has  been  rendered  against  your  petitioners, 
establishing  the  said  claim  to  the  extent  of  $8,833  22,  from 
which  decree  your  petitioners  have  brought  up  their  appeal 
to  your  Honors,  and  the  same  is  now  pending.  Your  peti- 
tioners further  shew,  that  the  intestate  and  the  said  W.  H. 
Tomlinson,  about  the  years  1838  to  1843,  were  partners  in 
mercantile  business  in  the  Town  of  Cheraw;  that,  after  their 
dissolution,  the  said  William  H.  Tomlinson  continued  busi- 
ness as  a  merchant  in  his  individual  name  for  a  short  time, 
and  the  intestate  used  to  endorse  for  him;  that  some  short 
time  after  the  dissolution  of  their  partnership,  about  the  terms 
of  which  the  said  William  was  dissatisfied,  he,  the  said 
William,  declared  to  a  third  person,  that  he  then  had  the 
intestate's  blank  endorsement,  and,  if  he  did  not  do  what 
was  right,  he  would  use  it;  that,  after  that  time,  the  said 
William  was  constantly  engaged  in  mercantile  business,  and 
used  many  printed  blank  promissory  notes  in  his  business,  of 
a  printed  date,  subsequent  to  1S39-40;  that  after  the  said 
claim  of  the  said  Thomas  Tomlinson,  Sr.,  as  holder  of  the 
said  |S,000  note,  had  been  presented,  the  said  W.  H.  Tom- 
linson, (the  maker,  under  his  style  of  W.  H.  Tomlinson, 
agent,)  was  asked,  on  behalf  of  your  petitioners,  if  he  intend- 
ed to  allow  the  estate  of  the  intestate  to  pay  this  amount,  to 
which  he  replied  that  he  did,  and  justified  himself  by  refer- 
ence to  the  advantage,  as  he  alleged,  the  intestate  had  got  in 
their  old  dissolution;  that  the  said  $8,000  note  appears,  upon 
inspection,  to  have  been  an  old  printed  blank  form  made 
before  the  year  1840,  as  the  printed  figures  in  the  date  are 
183 — ;    that  after  the  intestate's  death,  at  the  instigation  of 


APPEALS  IN  EaUITY. 


Columbia,  May,  ISfiO. 


the  said  William  H.  Toniliiison,  the  said  Thomas  Toniliii- 
son,  Sr.,  brought  an  action  of  trover  against  your  petitioners 
to  recover  some  twelve  or  more  negroes,  of  winch  the  intest- 
ate had  liad  possession  for  twenty-five  years,  and  had  raised 
many  of  them  from  birth,  with  a  view,  if  successful,  by  the 
recovery,  to  indemnify  himself  and  the  said  Culpepper 
"Wadk'ins  against  certain  suretyships  for  the  said  W,  II. 
Tomlinson  to  the  Wadesborough  bank  and  elsewhere;  and 
after  the  claim  founded  upon  tiie  said  $8,000  notj?  had  been 
preferred  by  the  said  Thomas  Tomlinson,  Sr.,  and  the  in- 
tended suit  in  trover  aforesaid  was  talked  of,  the  said  W.  H. 
Tomlinson  said,  in  reply  to  tlie  encjuiry  of  a  third  person, 
that  if  there  should  be  a  recovery  in  the  trover  case,  payment 
of  the  note  would  not  be  required.  Your  petitioners  further 
shew,  that  the  foregoing  facts  were  known  to  your  petition- 
ers, or  to  their  solicitors,  bel'bre  the  hearing  of  the  Circuit 
Court;  some  of  them,  however,  liavi ng  been  learned  only  a 
short  time  previously;  but  your  petitioners,  though  their 
efforts,  under  the  advice  of  their  solicitors,  were  directed  to 
this  very  end,  were  not  able  to  discover  any  privity  between 
the  said  W.  H.  Tomlinson  and  the  said  Thomas  Tomlinson, 
Sr.,  in  the  acquisition  by  the  latter  of  the  said  promissory 
note,  and  the  possession  thereof,  by  reason  whereof  the  acts 
and  declarations  of  the  said  W,  H.  Tomlinson  could  effect 
the  rights  of  the  said  Thomas  Tomlinson,  Sr.,  as  the  holder 
of  the  said  promissory  note;  that  after  the  decree  of  the  Cir- 
cuit Court  had  fixed  beyond  relief,  as  it  was  supposed,  the 
liability  of  your  jietitioners'  intestate,  for  the  payment  of  the 
said  note,  the  said  Culpepper  Wadkins  then  disclosed  the 
fact,  that  long  after  the  death  of  the  said  Henry  M.  Tomlin- 
son, to  wit:  in  the  year  1S56,  the  said  W.  H.  Tomlinson 
delivered  the  said  promissory  note  to  the  said  Thomas  Tom- 
linson, Sr.,  as  an  indemnity  to  him  and  the  said  Culpepper 
Wadkins  against  their  liability  aforesaid,  as  sureties  for  the 
said  W.  II.  Tomlinson  to  the  Bank  of  Wadesborough  and 
elsewhere;    that    at    that    time,  under    those   circumstances, 


50  APPEALS  IN  EQUITY. 

Tomlinson  vs.  Tonilinson. 

add  for  such  consideration,  the  said  Thomas  Tomlinson,  Sr., 
acquired  the  possession  of  the  said  promissory  note.  And 
your  petitioners  further  shew,  that  since  the  hearing  in  the 
Circuit  Court,  a  verdict  has  been  rendered  for  the  defendants 
in  a  suit  in  the  State  Courts  of  North  Carolina,  brought  by 
the  Bank  of  Wadesborough  against  the  said  Thomas  Tom- 
linson, Sr,,  and  the  said  (Culpepper  Wadkins,  to  recover  one 
of  the  debts,  against  their  liability  for  which  the  said  deposit 
of  the  said  4:)roraissory  note  was  intended  as  an  indemnity; 
in  which  suit,  however,  a  new  trial  has  been  granted  by  the 
Circuit  Court. 

Your  petitioners  now  charge  the  facts  to  be,  that  the  afore- 
said endorsement  by  the  intestate,  was  made  upon  a  printed 
blank  form,  shortly  after  the  dissolution  of  the  partnership 
between  the  intestate  and  the  said  William  H.  Tomlinson, 
and  designed,  according  to  some  cotemporaneous  understand- 
ing, to  be  filled  up  and  used  by  the  said  W.  H.  Tomlinson, 
for  his  accommodation  in  his  tlien  existing  mercantile  busi- 
ness; that  after  its  original  purpose  had  failed,  or  proved 
unnecessary,  it  was  wrongfully  kept  in  existence  by  the  said 
W.  H.  Tomlinson,  without  the  knowledge  or  consent  of  the 
intestate;  that  alter  the  lapse  of  more  than  ten  years,  and 
after  the  authority  to  fill  it  up  had,  if  not  by  mere  lapse  of 
time,  at  least,  by  the  death  of  the  intestate,  been  revoked,  it 
was  fraudulently  filled  up  and  put  into  circulation  by  the  said 
W,  H.  Tomlinson,  and  that  the  said  Thomas  Tomlinson,  Sr., 
if  not  a  wilful  and  active  participator  in  the  fraud,  did  not 
acquire  the  property  in  the  said  note  and  become  the  holder 
thereof  bona  fide,  and  for  valuable  consideration,  but  mala 
fide,  and  under  circumstances  of  gross  negligence,  to  say  the 
least,  and  by  the  aid  of  the  testimony  of  the  said  Wadkins, 
discovered  since  the  Circuit  hearing  and  decree,  this  chain  of 
facts  can  be  established. 

Wherefore  your  petitioners  pray  that  tlie  said  cause,  so  far 
as  respects  the  question  of  the  validity  of  the  claim  and 
demand  of  the  said  Thomas  Tomlinson,  Sr.,  as  holder  of  the 


APPEALS  IN  EaUITY.  57 

Columbia,  May,  1S59. 

aforesaid  promissory  note,  against  the  estate  of  the  said  Henry 
M.  Tomlinson,  as  endorser,  may  be  sent  back  to  ihe  Circuit 
Court  to  bo  relieard  upon  such  testimony  as  your  petitioners 
and  the  said  Tlionias  Tomlinson,  Sr.,  shall  be  able  to  adduce, 
or  else  that  your  petitioners  may  iiave  leave  to  file  a  bill  in 
the  nature  of  a  bill  of  review,  that  the  decree  of  the  said 
Circuit  Court  upon  the  said  question  ai]d  upon  the  liability  of 
ihe  said  estate  of  the  intestate  by  reason  of  the  said  endorse- 
ment, may  be  reviewed  and  reversed  or  modified,  or  that  your 
petitioner  may  have  other  suitable  relief,  &c. 

INGLIS  &  INGLIS, 
Solicitors  for  Petitioners. 


The  State  of  South  Carolina, 
Chesterjield  District. 

Martha  Tomlinson  and  Thomas  Tomlinson,  Jr.,  come  in 
person  before  me  and  say,  on  oath,  that  the  facts  stated  in  the 
foregoing  petition  are  all  either  known  to  them  personally,  or 
they  have  been  informed  of  them  by  others,  in  whom  they 
have  confidence ;  that  so  far  as  tliose  facts  are  within  their 
own  knowledge,  they  are  true,  and  so  far  as  their  knowledge 
of  them  has  been  derived  from  the  information  of  others, 
they  believe  them  to  be  true. 

MARTHA  TOMLINSON. 

Sworn  and  subscribed  before  me,  this  30th  day  of  April, 
A.  D.,  1 858.  John  F.  Matheson,  Notary  Public. 


CERTIFICATE. 

We  hereby  certify  that  we  have  examined  the  foregoing 
petition,  and  are  of  opinion  that  the  new  matter  alleged  to 
have  been  disclosed  by  Wadkins  since  the  Circuit  decree,  is 
relevant  and   material   to  the  issue,  and,  if  known,  would,  in 


58  APPEALS  IN  EaUITY. 

Tomliiison  vs.  Tomliiison. 

connection  with  the  other  facts  stated  in  the  petition,  have 
entitled  the  petitioners  to  a  decree,  or,  at  least,  have  made  a 
determination  in  their  favor,  very  probable. 

JOHN  A.  INGLIS. 

A.  C.  SPAIN. 


AFFIDAVITS  IN  SUPPORT  OF  PETITION. 

The  State  of  South  Carolina, 
Chesterfield  District. 

Before  me,  K.  T.  Morgan,  the  subscribing  officer,  conies  in 
person,  Edmund  J.  Waddill,  and  makes  oath,  that  he,  depo- 
nent, was  well  acquainted  with  the  late  Henry  M.  Tomlinson, 
and  also  is  well  acquainted  with  William  H.  Tomlinson,  a 
surviving  brother;  that  the  two  brothers  were  merchants  in 
partnership  in  Cheraw,  from  about  183S  to  1843  ;  that  in  the 
year  1S45,  (as  well  as  deponent  can  now  remember  the  date,) 
after  the  dissolution  of  their  said  partnership,  the  said  William 
H.  Tomlinson,  in  conversation  with  this  deponent,  said  that 
his  brother  Henry  had,  in  the  terms  of  dissolution,  got  the 
advantage  of  him,  (William)  but  that  he  had  in  his  posses- 
sion, his  (Henry's)  blank  endorsement,  ai]d  if  he  (Henry)  did 
not  do  what  was  right,  or  as  he  had  promised,  he  (William) 
would  use  the  said  blank  endorsement;  that  after  the  death 
of  Henry  M.  Tomlinson,  when  Thomas  Tomlinson,  Sr.,  the 
father  of  the  two,  had  preferred  against  the  estate  of  the  said 
Henry,  his  claim  as  endorsee  of  the  ^8,000  note,  purporting 
to  be  made  by  W.  H.  Tomlinson,  Agent,  in  favor  of  said 
Henry,  and  endorsed  by  the  latter  in  blank,  and  when  there 
was  a  rumor  of  the  intended  suit  in  trover,  which  was  after- 
wards brought  by  the  father  against  the  administrators  of 
Henry,  to  recover  some  twelve  or  more  negroes  which  were  in 
Henry's  possession  at  his  death,  deponent  asked  William  H. 
Tomlinson,  if  the  negroes  should  be  recovered  by  the  father, 
whether  the  collection  of  the  said  note  of  $8,000  would  be 


APPEALS  IN  EaUITY.  5«) 

Columbia,  May,  1859. 

insisted  on,  and  William  II.  Tomliiison  replied  that  it  would 
not;  and  further  deponent  saith  not. 

E.  .T.  WADDILL. 

Sworn  and  subscribed   before  me,  this  30th  day  of  April, 
A.  D.,  1S5S.  K.  T.  Morgan,  Magistrate. 


The  State  of  South  Carolina, 
Chesterfield  District. 

Before  me,  Kenan  T.  Morgan,  the  subscribing  olTicer, 
conies  in  person,  Culpepper  R.  Wadkins,  who,  being  duly 
sworn,  deposes — That  he  was  well  acquainted  with  the  late 
Henry  M.  Tomlinson  in  his  lifetime;  and  that  he  has  known 
William  H.  Tomlinson  for  twenty-five  years  past.  That  he 
(deponent)  is  the  brother-in-law  of  the  said  Henry  and  Wil- 
Ham.  Deponent  sailh  further,  that  about  the  year  1S53,  he 
(deponent)  became  surety  for  the  said  William  H.  Tomlinson 
in  the  Bank  of  Wadesborough,  N.  C,  for  a  large  amount, 
and  that  Thomas  Tomlinson,  Sr.,  the  father  of  the  said  Wil- 
liam H.,  was  his  co-surety  therein.  That  deponent  continued 
after  that  time  to  endorse  for  the  said  William  II.  in  the  Bank 
of  Wadesborough,  until  about  the  beginning  of  the  year 
1856,  when  his  liabilities  on  account  of  his  said  suretyship 
amounted  to  a  very  large  sum,  say  313,000.  That  some  time 
in  the  Spring  of  the  year  1856,  and  about  a  year  after  the 
death  of  the  said  Henry  M.  Tomlinson,  deponent,  in  the 
course  of  a  conversation  had  with  the  said  William  H.  Tom- 
linson, relative  to  the  liabilities  aforesaid,  of  this  deponent 
and  the  said  Thomas  Tomlinsori,  Sr.,as  sureties,  as  aforesaid, 
for  him  (the  said  William  II.,)  asked  the  said  William  H. 
how  ho  was  going  to  redeem  his  (William's)  promise  to 
secure  his  (William's)  father  and  himsolf  (deponent)  in  their 
liabilities  incurred  as  aforesaid  on  his  (William's)  behalf,  and 
that  the  said  William  H.  replied  by  exhibiting  to  deponent  a 
note  for  ^8,000,  [)urporting  to  have  been  drawn  by  the  said 


60  APPEALS  IN  EaUlTY. 

Toiiilinson  vs.  Tomlinson. 

William  H.  Tomlinson,  under  the  signature  employed  by 
him  at  that  time  in  the  prosecution  of  his  mercantile  busi- 
ness— viz:  "  PV.  H.  Tomlinson,  JigH'''' — payable  to  the  order 
of  the  said  Henry  M.  Tomlinson,  and  endorsed  in  blank  by 
the  said  Henry  M.,  and  saying  that  he  (William  H.)  would 
"assign"  over  the  said  note  to  his  (William's)  father  and 
deponent,  to  secure  them  as  he  had  promised.  Deponent 
saith  further,  that  the  conversation  referred  to  above  was  had 
at  the  residence  of  the  said  Thomas  Tomlinson,  Sr.,  the 
father  of  the  said  William  H.,  in  Stanley  county,  N.  C. ;  that 
the  note  aforesaid  was  then  in  the  possession  and  control  of 
the  said  William  H.,  and  that  he  (the  said  William  H.)  prom- 
ised deponent  to  "assign"  over  the  said  note  for  the  benefit 
of  deponent  and  the  said  Thomas  Tomlinson,  Sr.,  before  he 
(the  said  William)  should  leave  his  (William's)  father's  house. 

And  further  deponent  saith  not. 

C.  R.  WATKINS. 

Sworn  to  and  subscribed  before  me,  [the  word  "  has"  in  the 
fifth  line  from  the  top  of  the  first  page  having  been  first 
interlined,]  this  third  day  of  May,  A.  D.,  185S. 

K.  T.  Morgan,  Maghlrate. 


The  State  of  South  Carolina, 
Chesterfield  District. 

Thomas  Tomlinson,  .Tr.,  comes  in  person  before  me,  and 
says  on  oath,  that,  after  the  bill  was  filed  by  deponent  and 
his  mother,  Martha  Tomlinson,  as  administrators  of  the 
estate  of  Henry  M.  Tomlinson,  against  the  creditors  and  dis- 
tributees of  the  said  intestate,  and  after  Thomas  Tomlinson, 
Sr.,  under  the  order  made  in  the  said  cause,  calling  in  the 
creditors  to  prove  their  demands,  had  presented  his  claim  as 
holder  of  a  promissory  note  for  $8,000,  purporting  to  be 
made  by  W.  H.  Tomlinson,  Ag't.  on  the  5th  July,  1853,  and 
payable   to   tlie   order  of  Henry  M.  Tomlinson,  three  years 


APPEALS  IN  EaUITY.  61 

Columbia,  May,  1869. 

after  date,  and  endorsed  by  the  said  Henry  M.  Tomlinson,  in 
blank,  and  before  the  hearings  had  before  the  coinniissioncr 
^and  the  Circnit  Chancellor,  npon  the  validity  of  the  said 
claim,  deponent  made  every  effort  in  his  power  to  discover 
how  the  said  Thomas  Tomlinson,  Sr.,  came  to  be  the  holder 
ot  the  said  note,  and  at  what  time  he  arqnired  the  possession 
of  the  same,  but  could  find  no  one  who  had  ever  heard  or 
known  of  the  existence  of  it  until  it  was  produced  as  afore- 
said, as  a  claim  against  the  estate  of  the  said  Henry  M. 
Tomlinson;  that  among  otliers,  deponent  applied  to  Cul- 
pepper R.  WatUins — a  son-in-law  of  the  said  Thomas  Tom- 
linson, Sr.,  residing  quite  near  to  him,  and,  therefore,  sup- 
posed by  deponent  to  have  some  knowledge  on  the  subject — 
for  information  as  to  the  time  when,  the  place  where,  the 
person  from  whom,  the  consideration  for  which,  and  the  cir- 
cumstances under  which,  the  said  Thomas  Tomlinson,  Sr., 
had  become  the  holder  of  the  said  note,  but  the  said  Watkins 
disavowed  any  knowledge  about  the  matter,  and  left  depo- 
nent to  believe  that  lie  could  not  give  the  information  sought; 
that  within  a  few  days  after  the  adjournment  of  the  Circuit 
Court,  in  February  last,  at  which  the  Chancellor  decreed  in 
favor  of  the  said  claim  of  the  said  Thomas  Tomlinson,  Sr., 
establishing  the  said  note  as  a  valid  demand  against  the 
estate,  deponetil  was  on  a  visft  to  the  said  Watkins,  at  his 
residence  in  North  Carolina,  with  a  view  to  get  information 
from  him  about  the  matters  involved  in  another  suit,  pend- 
ing at  law,  between  the  said  Thomas  Tomlinson,  Sr.,  and 
the  administrators  of  the  said  Henry  M.  Tomlinson,  and,  in 
a  conversation  had  with  said  Watkins,  he  asked  deponent  if 
the  "estate"  had  lost  the  "note  case,"  and  being  told  in 
reply  that  it  had,  he  said  that  if  so  he  ought  to  have  one- 
half  of  the  amount,  and  to  deponent's  inquiry,  "why  so?" 
he  said  that  William  H.  Tomlinson  had  given  the  note  in 
question  to  liis  father,  the  said  Thomas  Tomlinson,  Sr.,  to  be 
used  and  applied  as  an  indemnity  to  the  said  Thomas  and 
himself  (Watkins)  against  the  liability  which  they  had  jointly 


63  APPEALS  IN  EaUlTY. 

Tomlinson  vs.  Tomlinson. 

incurred  as  sureties  for  the  said  William  to  the  Bank  of 
Wadesborough  and  elsewhere,  and  had  promised  him  (Wat- 
kins)  so  to  do;  that  the  said  Watkins  afterwards  wrote  to^ 
deponent,  in  reply  to  a  letter  referring  to  the  said  conversa- 
tion ;  that  the  said  William  had  the  said  note  in  his  own 
possession,  and  shewed  it  to  him  (Watkins)  in  the  year 
1856,  about  April,  and  at  that  time  promised,  as  aforesaid, 
and  expressed  his  purpose  then  forthwith  to  deposit  it  with 
his  father  for  the  purpose  aforesaid,  and  that  this  occurred 
near  to  the  residence  of  the  said  Thomas  Tomlinson,  Sr. 
Deponent  further  says,  that  he  also  applied  to  the  said 
Thomas  Tomlinson,  Sr.,  himself,  for  information  as  to  when, 
how,  and  from  whom  he  got  the  said  note,  but  could  get  no 
information  from  him,  as  he  studiously  avoided  all  conversa- 
tion with  deponent  on  the  subject,  and  deponent  had  and 
could  obtain  no  knowledge  about  this  particular  point  until 
after  the  Circuit  decree  aforesaid. 

THOMAS  TOMLINSON,  Jk. 

Sworn  to  and  subscribed  before  me,  this  8th  day  of  May, 
A.  D.,  1858.  K.  T.  Morgan,  Magistrate. 


AFFIDAVITS    FOR    RESPONDENT. 

$8,000.  Cheraw,  S.  C,  July  5th,  1853. 

Three  years  after  date,  I   promise  to  pay  to  the  order  of 
Henry  M.  Tomlinson,  $8,000,  value  received. 

'  (Signed)  W.  H.  TOMLINSON,  Agent. 

Endorsed,  H.  M.  Tomlinson. 


The  State  of  North  Carolina,  "I 
Stanly  County.  j 

Thomas    Tomlinson,  Sr.,  maketh    oath,   and    says,   That 
Henry  M.  Tomlinson,  the  intestate  in  the  pleadings  men- 


APPEALS  IN  EaUlTY.  63 

Columbia,  May,  1859. 

tinned,  was,  in  his  lifetime,  and  at  ilie  time  of  his  death,  and 
his  estate  still  is  justly  and  truly  indebted  to  this  deponent, 
in  the  sum  of  ^8,000,  with  interest  on  the  same  from  the  5th 
day  of  July,  A.  I).,  \S5G,  by  virtue  o(  his  endorsement  of  the 
negotiable  note  above  copied  ;  and  this  deponent  further  says, 
that  neither  he,  this  deponent,  nor  any  other  person,  by  his 
order  or  to  his  knowledge  or  belief,  for  his  use  hatli  received 
the  said  sum  of  money  or  any  part  thereof,  or  any  security  or 
satisfaction  for  the  same  or  any  part  thereof.  And  this  depo- 
nent further  says  that  he  is  aware  of  no  discount  to  wliich 
said  note  is  subject. 

THOS.    TOMLINSON. 

Sworn  to  before  me  this  18th  day  of  December,  A.  D,,  1857. 
Witness  my  hand  and  official  seal, 
[l.  s.]     William  Allen, 
Commissioner  of  Deeds  for  the  State  of  South  Caroliiia. 

South  Carolina,     \ 
Chesterfield  District,  j 

1,  J.  C.  Craig,  Com'r  Equity  for  said  district,  do  certify  that 
the  foregoing  is  a  true  and  correct  copy  taken  from  the 
original. 

Given  under  my  hand  and  seal  of  office,  this  ISth  day  of 
November,  A.  D.,  1858. 

[seal.]  J.  C.  CRAIG,  Comniissio77er. 


The  State  of  North  Carolina, 
St  anil/  Coi(?iti/. 
Thomas  Tonilinson,  Sr.,  comes  in  person  before  me,  and, 
after  being  duly  sworn,  makes  oath,  and  says,  That  he  never 
has  reftised  to  give  any  information  in  regard  to  tlie  note  for 
^8,000,  which  is  the  subject  matter  of  the  appeal  in  the  case 
above  stated,  to  the  administrators,  the  complainants  ;  nor 
has  he  in  any  way  evaded  their  enquiries  with  respect  to  said 
note.     On  the  contrary,  he,  this  deponent,  on  or  about  the 


G4  APPEALS  IN  EaUlTY. 

Tomlinson  vs.  Tomlinsoii. 

10th  day  of  December,  A.  D.,  1857  (the  only  time  when 
inquiry  was  made  of  liim  on  the  subject),  stated  the  consid- 
eration moving  from  this  deponent  for  the  endorsement  of 
said  note,  to  Thomas  Tomhnson,  Jr.,  one  of  the  complain- 
ants. 

Deponent  further  says  that  some  time  in  June,  A.  D.,  1S56, 
deponent  sent  a  message  by  Martha  Tomlinson,  one  of  the 
complainants,  to  the  said  Thomas  Tomlinson,  Jr.,  the  other 
complainant,  to  come  up  and  see  him,  this  deponent,  and  it 
might  save  the  estate  of  Henry  M.  Tomlinson,  his  intestate, 
cost  and  the  administrators  trouble.  Deponent  further  says, 
that,  at  the  time  last  mentioned,  viz:  June,  1856,  no  proceed- 
ings had  been  instituted  for  the  recovery  of  the  said  note^ 
and  deponent  thought  some  arrangement  might  be  made  by 
which  said  note  could  be  settled  without  suit.  Deponent 
further  says,  that,  finding  that  complainants  paid  no  attention 
to  his  request,  suit  was  instituted  on  said  note,  to  recover 
irotn  the  estate  of  Henry  M.  Tomlinson  what  it  justly  owed 
tliis  deponent  on  account  of  his  endorsement  of  said  note. 
Deponent  further  says,  that  on  or  about  the  lOtli  day  of 
December,  1857,  he  stated  to  Thomas  Tomlinson,  Jr.,  that 
deponent  had  sent  him  the  message  aforesaid,  and  that 
Thomas  Tomlinson,  Jr.,  did  not  deny  having  received  said 
message. 

Deponent  further  swears  that  William  H.  Tomlinson  has  not 
been  his  agent  since  the  death  of  the  said  Henry  M.  Tomlin- 
son (except  for  the  purpose  of  making  a  demand  for  certain 
slaves  claimed  by  this  deponent),  and  that  said  William  H. 
was  never  authorized  by  this  deponent,  to  say  that  if  depo- 
nent recovered  tiie  slaves  in  the  action  commenced  for  tlieir 
recovery,  that  the  collection  of  said  note  would  not  be 
insisted  on  by  this  deponent. 

Deponent  further  says,  that  he  never  knew  or  heard  of  the 
conversation  between  C.  R.  Watkins  and  William  H.  Tomlin- 
son in  regard  to  the  assignment  of  a  note  for  $8,000  to  pro- 
tect deponent  and  said  Watkins  in  their  suretyship  for  the 


APPEALS  IN  EQUITY.  65 

Columbia,  May,  1859. 

said  William  H.  Tomlinson,  mentioned  in  the  affidavit  of  said 
Watkins,  until  a  copy  of  said  affidavit  was  sent  to  deponent 
by  his  solicitors  in  the  case  above  stated. 

THOMAS   TOMLINSON,  Sr. 
Sworn  to  before  me  this  2 1st  day  of  October,  1858. 
[l.  s.]     William  Allen, 
Cnmmissiojiey^  in  take  the  acknoivJedgineyits 

of  Deeds,  Sf-c,  Sj-c.,  for  the  State  of  South  Carolina. 


The  State  of  North  Carolina,  \ 
Stanly  County.  j 

Before  me,  William  Allen,  appeared  C.  R.  Watkins,  of  said 
County,  and,  after  being  duly  sworn,  says  that  the  object  of  this 
affidavit  is  to  explain  the  one  given  the  third  day  of  May, 
1S5S,  before  K.  T.  Morgan,  of  Chesterfield  district,  S.  C,  in 
the  case  of  the  administrators  of  the  late  Henry  M.  Tomlin- 
son, Sr.,  of  Stanly  County,  N.  C,  in  Equity,  the  declaration 
stated  in  that  affidavit  concerning  the  eight  thousand  dollar 
note  :  Thomas  Tomlinson,  Sr.,  was  not  present  at  the  time, 
and  did  not  hear  it. 

November  15,  1858.  C.   R,  WATKINS. 

William  Allen, 
Comjnissioner  for  the  State  of  South  Carolina. 


The  State  of  North  Carolina,  1 
Sta?ify  County.  j 

Before  me  personally  appears  C.  R,  Watkins,  who  on  oath 
says:  That  he  desires  to  make  further  correction  to  his  affidavit 
made  before  K.  T.  Morgan,  Esq.,  on  the  3d  day  of  May,  A.  D. 
1858,  in  the  case  of  Martha  Tomlinson  and  Thomas  Tom- 
linson, .Ir.,  administrators  of  H.  M.  Tomlinson,  vs.  Thomas 
Tomlinson,  Sr.,  and  others,  by  stating  that  the  facts  detailed 
6 


66  APPEALS  IN  EaUITY. 

Tomlinson  vs.  Tomlinsoii. 

in  said  affidavit  were  all  made  known  to  the  said  Thomas 
Tonilinson,  Jr.,  administrator,  as  aforesaid,  before  the  refer- 
ence before  the  Commissioner  in  Equity,  and  that  deponent 
promised  to  attend  said  references  as  a  witness,  if  the  said 
Thomas  Tomlinson,  Jr.,  desired  it;  but  never  being  called 
upon  to  do  so,  he  (this  deponent)  did  not  attend.  Deponent 
further  says  on  oath,  that  he  did  not  intend  to  say  in  said 
affidavit  that  the  note  therein  alluded  to  was  endorsed  in  blank 
by  the  said  Henry  M,,  for  he  does  not  remember  whether 
such  was  the  fact,  nor  does  he  remember  the  date  or  the  time 
of  maturity  of  said  note.  Deponent  further  says,  that  not 
only  was  Thomas  Tomlinson,  Sr.,  not  present  at  the  conver- 
sation between  this  deponent  and  William  H.  Tomlinson, 
detailed  in  said  affidavit,  but  deponent  believes  that  he  knew 
nothing  about  it  at  the  time,  for  some  time  after  said  conver- 
sation deponent  asked  the  said  Thomas  Tomlinson,  Sr.,  if  the 
said  William  H.  had  assigned  over  the  said  note  to  secure 
this  deponent  and  the  said  Thomas  Tomlinson,  Sr.,  from  lia- 
bility, by  reason  of  their  suretyship  for  the  said  William  H., 
when  the  said  Thomas  Tomlinson,  Sr.,  replied  that  he  had 
not,  and  nothing  that  then  passed  indicated  that  the  said 
Thomas  Tomlinson,  Sr.,  knew  of  the  proposition  of  the  said 
William  H.,  to  assign  the  said  note  for  the  purpose  aforesaid. 
Deponent  further  says,  that  the  affidavit  of  the  3d  of  May, 
1S5S,  was  made  hurriedly,  and  therefore  he  finds  it  necessary 
to  make  these  corrections. 

C.  R.  WATKINS. 
Sworn  to  before  me,  the  2d  day 
of  February,  1859, 

William  Allen,  [l.  s.] 
Commissioiier  for  the  Stale  of  South  Carolina. 


Johnston,  Ch.     It  is  ordered,  that  the  order  made  at  Febru- 
ary Term,   1858,  in  the  cause  wherein  Martha  Tomlinson 


APPEALS   IN  EaUITY.  67 

Columbia,  May.  1S59. 

and  Thomas  Tomlinson,  Jr.,  are  complainants,  and  Thomas 
Tomlinson,  Sr.,  Ann  Eliza  Tomlinson  and  others,  distribu- 
tees and  creditors  of  Henry  M.  Tomlinson,  deceased,  are 
defendants,  in  which  cause  this  petition  is  filed,  confirming 
the  report  of  the  commissioner  upon  the  claims  against  the 
intestate,  Henry  M.  Tomlinson,  proved  before  him,  in  so  far 
as  the  said  order  establishes  the  claim  of  the  defendant, 
Thomas  Tomlinson,  Sr.,  as  holder  of  the  promissory  note  of 
^8,000,  mentioned  in  the  petition,  as  a  valid  demand  against 
the  estate  of  the  said  intestate,  be  rescinded  ;  and  that  the 
said  cause,  so  far  as  the  validity  of  the  said  claim  of  the 
defendant,  Thomas  Tomlinson,  is  involved,  be  set  down  for  a 
rehearing. 

It  is  further  ordered,  that  the  former  order  of  this  Court  in 
the  said  cause,  enjoining  the  creditors  of  the  intestate,  Henry 
M.  Tomlinson,  from  proceeding  in  their  actions  at  law,  l)e  so 
modified  as  that  the  defendant,  Thomas  Tomlinson,  Sr.,  may 
proceed  to  trial  and  verdict  in  his  action  heretofore  com- 
menced in  the  Court  of  Common  Pleas,  for  Chesterfield  dis- 
trict, as  alleged  endorsee  and  holder  of  the  aforesaid  promis- 
sory note  of  $8,000,  to  recover  against  the  present  petitioners, 
as  administrators  of  the  estate  of  Henry  M.  Tomlinson, 
upon  the  liability  of  the  said  Henry  M.,  as  alleged  endorser 
of  the  said  promissory  note — that  the  said  Thomas  Tomlin- 
son, Sr,,  have  leave  and  right  to  file  a  declaration  in  the  said 
action,  and  tlie  present  petitioners,  defendants  in  the  said 
action,  be  required  to  plead  to  the  said  declaration — that  the 
said  parties  bring  the  said  action  to  trial  and  verdict  in  the 
said  Court  of  Common  Pleas,  for  Chesterfield  district — and 
when  the  said  action  shall  be  fully  disposed  of  (by  appeal,  if 
necessary,)  at  law,  that  all  further  proceedings  at  law  in  the 
said  action  be  suspended,  and  the  said  record  be  brought  into 
this  Court  for  the  further  order  of  this  Court  touching  the 
same,  in  conformity  to  the  result  attained  at  law. 

The  defendant,  Thomas  Tomlinson,  Sr,,  appealed  on  the 
grounds : 


68  APPEALS  IN  EaUITY. 

Tomlinson  vx.  Tomlinson. 

1.  Because  the  case  made  by  the  petition  raises  a  new 
question,  making  an  entirely  new  issue,  and  requiring  new 
depositions. 

2.  Because  the  petition  bringing  forward  matter  entirely 
new,  and  raising  an  issue  not  before  the  Court  on  the  original 
hearing,  should  have  been  accompanied  by  a  bill  in  the 
nature  of  a  bill  of  review. 

3.  Because  the  evidence  said  to  have  been  discovered  since 
the  original  hearing  was  not  in  writing. 

4.  Because  it  appeared  from  the  affidavit  of  the  very  wit- 
ness, whose  testimony  was  said  to  have  been  discovered  after 
the  original  hearing,  that  the  said  testimony  was  in  fact  made 
known  to  one  of  the  complainants,  Thomas  Tomlinson,  Jr., 
before  the  reference  and  before  the  original  hearing. 

5.  Because,  as  it  is  respectfully  submitted,  his  Honor  erred 
in  ordering  an  action  at  law  to  test  the  validity  of  said  claim, 
the  case  being  before  him  merely  on  a  petition  to  rehear  in 
the  Court  of  Chancery. 

6.  Because  the  testimony  said  to  have  been  discovered 
since  the  original  hearing,  is  not  material. 

Mclver,  for  appellant. 
Inglis,  contra. 

[Authorities  cited;  Huson  vs.  Pickett,  2  Hill,  Ch.,  351  ; 
Hunt  vs.  Smith,  3  Rich.  Eq.,  541  ;  6  B.  Munro,  340  ;  Dexter 
vs.  Arnold,  5  Mason,  304;  Durant  vs.Ashmore,  2  Rich.,  194; 
Sitnpson  vs.  Daives,  5  Rich.  Eq.,  425;  6  Rich.  Eq.,  364;  Mitf. 
Eq.  PI.,  83;  Story,  Eq.  PI,  §  412;  3  Dan'l  Ch.  Pr.,  1624, 
1688  ;  Dogan  vs.  Dubois,  2  Rich.  Eq.,  85  ;  Carson  vs.  Hill, 
1  McM.,  76  ;  *^iken  vs.  Cathcart,  3  Rich.,  133  ;  3  Dan'l  Ch. 
Pr.,  1631  ;  Story,  Eq.  PI.  §  421,  422  ;  2  Mad.  Ch.  Pr.,  483  ; 
Johnso7i  vs.  Leivis,  1  Rich.  Eq.,  390  ;  2  Dan'l  Ch.  Pr.,  1624- 
1630,  note  1  ;  2  Smith's  Pr.,  49,  32,  34;  2  Russel  R.,  91  ; 
3  Eng.  Ch.  R.,  44;   1  Ves.  and  B.,  141  ;  Rich.  Eq.  Cas.,  405; 


APPEALS  IN  EaUITY.  69 


Columbia,  May,  1S59. 


Perkins  vs.  Lima;,  1  JNIcC.  Cli.,  30;  Haskell  vs.  Raoul,  1  McC. 
Ch.,  22,  32  ;  Ihison  vs.  Pickett,  2  Hill,  Ch.,  351  ;  Johnson  vs. 
Britten,  Dud.  Eq.,  28  ;  5  Rich.  Eq.,  519  ;  3  John's  Ch.,  124.] 

Tlie  opinion  of  the  Court  was  delivered  by 

DuNKix,  Ch.  After  a  careful  consideration  of  the  grounds 
of  appeal,  this  Court  is  of  opinion  that  the  judgment  of  the 
Chancellor  may  be  well  vindicated  upon  the  (acts  presented, 
and  is  not  at  variance  with  any  principle  heretofore  estab- 
lished. 

The  plaintiffs  (the  widow  and  son  of  Henry  M.  Tom- 
linson,  deceased,)  had  filed  a  bill  to  marshal  the  assets  of 
their  intestate's  estate.  Among  the  claims  presented,  under 
the  order  of  February,  1857,  was  that  of  the  defendant, 
Thomas  Tomlinson,  Sr.,  (the  fatlier  of  the  intestate,)  for 
§8,000.  For  reasons  stated  in  the  petition,  the  plaintiffs 
were  greatly  surprised  at  this  demand,  and  resisted  the  pay- 
ment both  before  the  commissioner,  and  in  the  Circuit  Court. 
Their  defence  was,  that  the  signature  of  tiie  intestate  to  the 
endorsement  was  not  genuine.  Much  evidence  was  offered, 
but  the  commissioner  concluded  that  the  genuineness  of  the 
iiandwriting  was  sustained  by  the  preponderance  of  testimony, 
and  this  conclusion  was  sanctioned  by  the  presiding  Chan- 
cellor, February,  lvS58.  An  appeal  was  taken  from  this 
decision,  and  pending  the  appeal,  to  wit:  in  April,  1858, 
this  petition  for  rehearing  was  filed.  The  application  was  at 
first  addressed  to  this  Court;  but  in  conformity  with  the 
decision  of  Downes  xis.  Simpson,  5  Rich.  Efj.,  422,  it  was 
directed  to  be  made  to  the  Circuit  Court. 

It  will  be  perceived,  that  the  ground  upon  which  the  peti- 
tioners rely,  is  the  discovery  of  a  new  fact,  constituting  in 
itsrlf  a  separate  and  independent  defence,  distinct  from  the 
defence  taken  at  the  original  hearing,  of  which  the  plaintiffs 
were  then  ignorant;  and  the  evidence  of  which  has  come  to 
their  knowledge  since  the  hearing.  If,  from  the  affidavits 
submitted  to  him,  the  Chancellor  conceived  that  the  defence 


70  APPEALS  IN  EaUITY. 

Tomlinson  vs.  Tomlinson. 

was  material — that  a  reasonable  foundation  was  raised  for 
further  inquiry  into  the  fact;  and  was  furthermore  satisfied, 
that  the  evidence  was  not  only  unknown  to  the  petitioners  at 
the  former  hearing,  but  that  their  ignorance  was  not  in  con- 
sequence of  a  want  of  due  diligence  on  their  part,  his  direc- 
tion for  rehearing  was  pro|ierly  granted.  The  material  fact, 
on  which  the  petitioners  press  their  claim,  is,  that  the  endorse- 
ment, which  is  the  foundation  of  the  defendant's  demand, 
was  an  accommodation  endorsement  of  the  intestate  on  a 
note  of  William  H.  Tomlinson,  and  left  in  the  possession  of 
the  latter,  many  years  since — that  it  had  never  been  used  or 
negotiated  by  the  said  W.  H.  Tomlinson,  in  the  lifetime  of 
the  intestate,  but  was  still  in  his  possession  as  late  as  1856, 
some  twelve  montlis  after  tlie  intestate's  death,  and  that  the 
note  was  at,  or  about,  that  time,  transferred,  or  assigned,  or 
delivered,  by  W.  H.  Tomlinson  to  the  defendant,  Thomas 
Tomlinson,  Sr.,  for  the  purpose  of  indemnifying  him  and 
his  son-in-law,  Culpepper  Watkins,  on  account  of  their  sure- 
tysiiip  for  the  said  W.  H.  Tomlinson,  in  the  Bank  of  Wades- 
borough.  If  th(ise  facts  be  susceptible  of  proof,  it  is  scarcely 
necessary  to  say  that  they  constitute  a  new  and  material  ele- 
ment in  the  defence  of  the  petitioners.  As  to  the  existence 
of  the  fact,  to  wit :  that  the  note  was  in  possession  of  the 
maker,  W.  H.  Tomlinson,  after  the  death  of  the  intestate; 
and  that  it  was  set  on  foot  subsequently  by  him,  the  affidavit 
of  Culpepper  R.  Watkins,  3  May,  1858,  is  very  distinct  ; 
nor  is  this  statement  materially  affected  by  his  subsequent 
affidavits  of  November,  1858,  and  February,  185.9.  But, 
after  the  petition  had  been  filed,  and  after  the  defendant, 
Thomas  Tomlinson,  Sr.,  had  been  put  in  possession  of  the 
affidavit  of  C.  R.  Watkins,  of  3  May,  1858,  to  wit:  on 
21  October,  1858,  he  also  makes  an  affidavit  in  reply.  It 
is  very  material  to  observe  that,  although  this  affidavit  is 
prepared  with  great  care  and  caution,  and,  upon  subordinate 
and  collateral  matters,  is  very  full  and  positive,  the  affiant, 
in  no  part,  undertakes  to   traverse   the  important  allegation. 


APPEALS  IN  EaUITY.  71 

Columbia,  May,  1809. 

that  tlie  note  was  set  on  foot  by  Wm.  H.  Tomlinson,  and  was 
received  by  biin,  the  defendant,  subsequent  to  the  deatli  of 
the  intestate.  The  apparent  reticence  of  the  defendant  in 
reference  to  this  charge  may  well  have  influenced  the  judg- 
ment of  the  Chancellor  in  giving  leave  for  further  inquiry; 
and,  notwithstanding  the  affidavits  submitted  on  the  part  of 
the  defence,  the  Court  is  satisfied  with  the  conclusion  of  the 
Chancellor,  that  the  evidence  was  not  such  as  the  plaintiffs 
could,  under  the  circun)stances,  with  due  diligence,  have 
procured  prior  to  the  original  hearing. 

Then  is  the  objection  well  taken,  that  in  order  to  warrant 
a  rehearing,  the  after-discovered  evidence  must  be  in 
writing?  The  appellant  is  certainly  sustained  by  expressions 
of  opinion  on  the  part  of  more  than  one  Chancellor  in  some 
of  our  reported  cases,  but  we  are  not  aware  of  any  case  in 
which  the  abstract  proposition  has  been  involved  and  deci- 
ded. None  such  has  been  adduced.  The  Court  recognizes, 
fully,  not  only  the  encouragement  to  protracted  litigation,  but 
the  danger  of  perjury,  in  permitting  an  unsuccessful  party  to 
bolster  up  a  defective  case  by  suppletory  proof,  and  the  Court 
has  no  disposition  to  encounter  such  hazard.  But  we  think 
the  distinction  is  accurately  stated  by  Chancellor  Harper,  in 
Cantcy  vs.  Blair,  1  Rich.  Eq.,  43.  "  When  a  party  comes 
into  this  Court  on  the  ground  of  newly-discovered  evidence, 
he  must  shew  some  tangible  and  substantial  fact,  constitut- 
ing, of  itself,  a  defence,  of  which  the  evidence  had  come  to 
his  knowledge  since  the  trial;  not  particles  of  testimony,  as 
they  are  called,  or  cumulative  testimony,"  &c.  And  this 
is  sustained  by  the  instructive  case  of  Baker  vs.  Whiling,  1 
Story  C.  C.  Rep.,  218,  in  which  Judge  Story  says:  "The 
general  rule  is,  not  to  allow  a  rehearing  upon  new-discovered 
evidence,  which  is  merely  cumulative,  to  the  litigated  facts 
already  in  issue."  With  this  qualification,  and  for  such  pur- 
pose, we  are  of  opinion  that  newly-discovered  evidence, 
though  oral,  may  serve  as  the  foundation  of  an  application 
for  rehearing.     In  this  case,  the  evidence  pointed  to  a  new 


72  APPEALS  IN  EaUlTY. 

Tomlinson  vs.  Tomlinson. 

fact,  constituting  a  distinct  ground  of  defence,  and  was 
strictly  within  the  distinction  thus  recognized.  The  effect  of 
the  order  of  the  Circuit  Court  is  not  to  adjudicate  the  rights 
of  the  parties,  but  to  remit  them  to  the  ordinary  and  appro- 
priate tribunal  for  inquiry  and  determination. 

It  is  ordered  and  decreed  that  the  appeal  be  dismissed. 

Johnston  and  Wardlaw,  CC,  concurred. 

Appeal  dismissed. 


APPEALS  IN  EaUITY.  73 


Columbia,  May,  1S59. 


Robert  C.  Gillam  vs.  Joseph  Caldwell  and  others,  Execu- 
tors J.  P.  Caldwell. 

Same  vs.  Same. 

Wills   and  Testaments — Limitation   of  Estates — Adminis- 
tration. 

The  testator  devised  and  bequeathed  his  estate,  real  and  personal,  to  his  execu- 
tors, in  trust,  for  the  sole  and  separate  use  of  his  two  daughters,  each  to  take 
one-half  for  life,  with  remainder  to  her  issue,  and  should  one  die  without 
leaving  issue  her  surviving,  then  her  share  to  the  surviving  daughter  for  life, 
with  remainder  to  her  issue;  "  but  in  the  event  that  both  of  my  daughters  should 
die  without  leaving  issue  surviving,  then  and  in  that  case,"  he  devised  and 
bequeathed  his  whole  estate,  real  and  personal,  after  some  incjonsiderable 
pecuniary  legacies,  to  his  brothers  and  sisters.  The  two  daughters  both  died 
unmarried  and  without  issue.  Ileld,  that  the  limitation  to  the  brothers  and 
sisters  of  the  testator  was  valid. 

The  will  containing  no  provision  for  the  payment  of  debts — held,  that  they  were 
chargeal)le  on  the  corpus  of  the  estate,  and  not  exclusively  on  the  income  to 
which  the  daughters,  as  tenants  for  life,  were  entitled. 

Where  a  testator  gives  no  direction  as  to  the  fund  out  of  which  his  debts  should 
be  paid,  they  are,  as  between  tenant  for  life  and  remaindermen  of  the  estate, 
chargeal)le  not  ujion  the  income,  but  upon  the  corpus  of  the  estate  as  it 
existed  at  the  death  of  the  testator. 

BEFORE  .TOIINSTON,  CH.,  AT  NEWBERRY,  JULY,  1S58. 

J.  P.  Caldwell  died  in  October,  1848,  leaving  a  la.st  will 
and  testament,  of  which  the  following  is  a  copy  : 

I,  James  P.  Caldwell,  of  the  District  of  Newberry,  in  the 
State  aforesaid,  do  make  the  following  disposition  of  my 
estate,  to  take  effect  at  my  death,  as  and  for  my  last  will  and 
testament,  viz: 

First.  It  is  my  will  and  desire  that  my  executors,  herein- 
after named,  shall  sell  my  plantation  lying  on  Indian  creek, 


74  APPEALS  IN  EaUlTY. 

Gillam  vs.  Caldwell. 

commonly  called  the  Gracy  Place,  and  containing  about  five 
hundred  and  fifty  acres,  (more  or  less,)  if  in  their  opinion 
they  can  obtain  a  reasonable  price  for  the  same;  but  if  a 
reasonable  price  cannot,  in  their  opinion,  be  obtained  for  the 
said  tract  of  land,  then  the  same  shall  be  retained  by  my 
executors  for  the  benefit  of  my  estate,  until  the  general  divi- 
sion of  my  estate  shall  take  place  between  my  two  daugh- 
ters, as  hereinafter  directed. 

Second,  I  also  authorize  and  empower  my  executors  to 
sell  my  tract  of  land,  called  the  Ragland  tract,  containing 
about  thirty-three  acres.  Also,  another  tract  of  land  owned 
by  me,  lying  adjoining  lands  of  William  Prize,  Burder  Boo- 
zer, and  others,  and  supposed  to  contain  between  one  hundred 
and  fifty  and  one  hundred  and  sixty  acres.  Also,  another 
tract  of  land  owned  by  me,  called  the  John  Hall  tract,  and 
supposed  to  contain  thirty-five  or  forty  acres,  bounded  at  this 
time  by  lands  of  Thomas  Crosson  and  James  Hogg.  Also, 
one  other  tract  of  land  owned  by  me,  supposed  to  contain 
about  one  hundred  and  thirty  acres,  bounded  at  present  by 
lands  of  Allen  Gibson,  James  Hogg,  Patrick  Martin,  and 
others.  It  is  not  my  intention  by  this  clause  to  direct  my 
executors  positively  to  sell  the  farm  tracts  of  land  in  this 
clause  mentioned,  but  my  intention  is  to  leave  it  to  the  judg- 
ment and  discretion  of  my  said  executors  to  sell  the  same,  or 
any  one  or  more  of  them,  should  it  in  their  opinion  be  condu- 
cive to  the  benefit  of  my  estate;  and  should  any  one,  or  all 
of  the  said  tracts  of  land  in  this  clause  mentioned  remain 
unsold  by  executors  at  the  general  division  of  my  estate, 
then  such  tract  or  tracts,  so  remaining  unsold,  shall  be  dis- 
posed of  as  hereinafter  directed. 

Third.  It  is  my  will  and  desire  that  the  stock  of  merchan- 
dise in  my  store,  at  the  time  of  my  death,  shall  be  retailed 
out  under  the  direction  of  my  executors,  as  heretofore,  until 
the  stock  shall  become  so  reduced  that  the  profits  will  not 
defray  the  expenses  of  a  retail  clerk  to  attend  to  the  business, 


APPEALS  IN  EaUlTY.  75 

Columbia,  May,  1S59. 

at  which  time  my  executors  may  sell  the  remaining  stock  of 
goods  at  public  auction. 

Fourth.  I  give,  devise  and  bequeath  to  my  executors,  here- 
inafter named,  the  whole  rest  and  residue  of  my  estate,  both 
real  and  personal,  including  all  my  bank  and  railroad  stock, 
and  all  debts  of  every  description  that  may  be  owing  to  me 
at  my  death,  together  with  the  proceeds  of  the  different  tracts 
of  land  mentioned  in  the  first  and  second  clauses  of  this 
will,  should  the  said  lands  or  any  part  of  them  be  sold,  but 
if  sales  of  the  said  lands  in  the  said  first  and  second  clauses 
of  this  will  cannot  be  eftected  on  the  terms  prescribed,  then 
I  give'  and  devise  the  said  lands,  or  such  as  may  remain 
unsold,  to  my  said  executors,  together  with  the  proceeds  of 
any  other  property,  which  may  be  hereinafter  directed  or 
authorized  to  be  sold,  in  trust  to  and  for  the  following  uses 
and  purposes,  viz:  The  one-half  thereof  for  the  sole  and 
separate  use  and  benefit  of  my  daughter,  Jane  Harriet  Cald- 
well, for  and  during  the  term  of  her  natural  life,  and,  at  her 
death,  I  give,  devise  and  bequeath  the  said  one-half  to  the 
issue  of  her  body,  absolutely  and  forever,  to  be  equally  divi- 
ded between  them  if  all  living,  but  if  not,  the  child,  or 
children  of  a  deceased  child,  shall  take  among  them  the 
share  which  the  parent  would  have  been  entitled  to  if  living  ; 
and  the  remaining  half  of  my  estate  for  the  sole  and  sepa- 
rate use  and  benefit  of  my  daughter,  Helen  Carew  Caldwell, 
for  and  during  the  term  of  her  natural  life,  and,  at  her  death, 
I  give,  devise  and  bequeath  the  said  last-mentioned  one-half 
of  my  estate  to  the  issue  of  her  body,  absolutely,  to  be  equally 
divided  between  them  if  all  living,  but  if  not,  the  child,  or 
children  of  a  deceased  child,  shall  take  amongst  them  the 
share  which  the  parent  would  have  been  entitled  to  if  living; 
but  if  either  one  of  luy  said  two  daughters  should  die  with- 
out leaving  issue  lier  surviving,  then,  and  in  that  case,  I  give, 
devise  and  bequeath  the  share  in  this  will  given  to  such 
daughter,  so   dying  without   issue,  to   my  said   executors,  in 


76  APPEALS  IN  EaUlTY. 

Gillain  vs.  Caldwell. 

trust  for  the  sole  and  separate  use  and  benefit  of  the  survivor 
of  the  said  two  daughters  during  her  natural  life,  and,  at  her 
death,  I  give,  devise  and  bequeath  the  same  absolutely  and 
forever  to  her  issue,  share  and  share  alike,  the  child  or  chil- 
dren of  a  deceased  child,  if  any,  taking  among  them  the 
share  to  which  the  parent  would  have  been  entitled  if  living. 

Fifth.  But  in  the  event  that  both  of  my  daughters,  above- 
named,  should  die  without  leaving  issue  surviving,  then,  and 
in  that  case,  I  give  and  bequeath  out  of  my  estate  the  sum  of 
four  hundred  dollars  to  Mary  Ann  Glenn  and  her  children; 
to  Harriet  Reid  and  her  children,  I  give  the  like  sum  of  four 
hundred  dollars  ;  to  Rebecca  Logan  and  her  children^  I  give 
the  like  sum  of  four  hundred  dollars;  and  to  Dr.  Joseph 
Chapman  and  his  children,  I  give  the  like  sum  of  four  hun- 
dred dollars,  all  absolutely  and  forever;  and,  upon  the  same 
contingency,  I  give  to  the  three  children  of  Richard  S. 
Brown,  deceased,  viz:  James  L.,  Sims  E.,  and  Martha 
Brown,  each  the  sums  of  one  hundred  dollars,  absolutely 
and  forever. 

Sixth.  And  upon  the  happening  of  the  contingency  in  the 
last  clause  above  alluded  to,  viz:  the  death  of  both  of  my 
daughters  without  leaving  issue,  then,  and  in  that  case,  I 
give  devise  and  bequeath  the  whole  of  my  estate,  both  real 
and  personal,  after  deducting  the  pecuniary  legacies  in  the 
fifth  clause  above  specified,  to  my  brothers  and  sisters,  to  be 
equally  divided  between  them,  share  and  share  alike,  abso- 
lutely and  forever;  but  should  any  of  my  brothers  or  sisters 
die  before  such  division  shall  take  place,  then  the  child,  or 
children  of  such  deceased  brother  or  sister,  shall  take  among 
them  the  share  which  their  parent  would  have  been  entitled 
to  if  living. 

Seventh.  It  is  my  will  and  desire  that  the  estate  given  to 
my  executors,  in  trust  for  the  uses  and  purposes  in  this  will 
specified,  shall  continue  under  the  control,  management  and 
direction  of  my  said  executors,  until  my  said  daughters  shall 
respectively  attain  the  age  of  twenty-one  years  or  marry,  at 


APPEALS  IN  EaUITY.  77 

Columbia,  May,  1S59. 

which  time  my  said  daughters  shall  have  tlie  use,  benefit 
and  enjoyment,  and  possession  of  all  the  property  and  estate 
which  they  may  be  respectively  entitled  to  lor  life  under  this 
will;  the  legal  estate  or  legal  right  to  the  same,  however, 
remaining  in  my  executors  during  their  lives  as  aforesaid. 

Eighth.  Should  any  of  the  slaves  belonging  to  my  estate 
become  so  turbulent  and  unruly  as  to  become  ditiicult  of 
government,  either  whilst  they  are  in  the  possession  of  my 
executors,  or  after  they  shall  have  been  delivered  into  the 
possession  of  either  of  my  daughters,  or  should  the  situation 
of  my  estate  require  more  funds  than  my  executors  may  be 
able  to  realize  from  the  debts  due  to  my  estate,  and  from  the 
sales  of  property  herein  authorized,  (provided  such  necessity 
for  additional  funds  shall  occur  whilst  said  slaves  are  in  the 
possession  of  my  executors,)  in  either  case  I  authorize  my 
executors  to  sell  such  of  my  slaves  as  may  become  unruly  as 
aforesaid,  or  to  sell  a  number  sufficient  to  raise  such  addi- 
tional funds  as  may  be  absolutely  necessary  for  the  use  of 
my  estate,  provided  that  my  executors  shall  be  restricted  to 
the  sale  of  old  negroes,  in  either  of  the  events  contemplated 
in  this  clause,  and  shall  not  be  at  liberty  to  sell  off  young 
slaves. 

Ninth.  It  is  my  will  and  desire  that  my  sister-in-law, 
Rebecca  Logan,  have  the  care,  management,  control  and 
keeping  of  my  two  daughters,  Jane  Harriet  Caldwell  and 
Helen  Carew  Caldwell,  for  two  years  from  the  date  of  this 
will;  and,  at  the  expiration  of  that  time,  it  is  my  will  that 
my  said  two  daughters  shall  be  sent  to  the  female  school  in 
Salem,  in  North  Carolina,  and  kept  at  that  school  for  four 
years  each. 

Tenth.  I  constitute  and  appoint  my  brother,  Joseph  Cald- 
well, and  my  brother-in-law  William  W.  McMorries,  execu- 
tors of  this  my  last  will  and  testament.  In  witness  whereof, 
I  have  hereunto  set  my  hand  and  seal,  this  twenty-ninth  day 
of  September,  one  thousand  eight  hundred  and  forty-eight, 
and  in  the  seventy-third  year  of  Ainerican  Independence. 


78  APPEALS  IN  EQUITY. 

Gillain  vs.  Caldwell. 

The  bill,  which  was  against  the  executors  named  in  the 
will,  stated   that  Jane   H.  Caldwell,  one  of  the  daughters  of 

the  testator,  died  on  the day  of  January,  1855,  intestate, 

unmarried,  under  the  age  of  twenty-one  years,  and  without 
issue:  That  Helen  C.  Caldwell,  the  other  daughter  of  the 
testator,  died  on  the  2d  day  of  July,  1856,  intestate,  unmar- 
ried, under  the  age  of  twenty-one  years,  and  without  issue: 
That  letters  of  administration  on  the  estate  of  these  two 
daughters  have  been  granted  to  the  complainant,  R.  C.  Gil- 
lam.  In  the  one  case,  the  complainant  claimed  that  as 
administrator  of  Jane  H.  Caldwell,  he  was  entitled  to  an 
account  of  one-half  of  the  personal  estate  of  the  testator, 
and  to  one-half  of  the  rents  and  profits  of  the  real  and  per- 
sonal estate,  from  testator's  death  to  the  death  of  the  said 
Jane  H.  Caldwell.  In  the  other  case,  the  complainant  claimed 
that  as  administrator  of  Helen  C.  Caldwell,  he  was  entitled 
to  one-half  of  the  personal  estate  of  the  testator;  to  one-half 
of  the  rents  and  profits  of  the  real  and  personal  estate,  from 
the  death  of  the  testator  to  the  death  of  the  said  Jane  H., 
and  to  the  whole  rents  and  profits  of  the  real  and  personal 
estate  of  the  testator,  from  the  death  of  Jane  H.  up  to  the 
time  of  the  final  settlement.  The  answers  of  the  defendants 
insisted  that  the  whole  corpus  and  income  of  the  testator's 
estate  passed  over  to  the  hrolhers  and  sisters  of  the  testator, 
upon  the  death  of  Helen  C.  Caldwell,  the  last  surviving 
daughter. 

Johnston,  Ch.  These  cases  were  heard  together :  On  hear- 
ing the  bills  and  answers  in  these  cases,  and  the  argument 
of  counsel,  it  is  adjudged  and  decreed,  that  the  limitations 
in  the  will  of  James  P.  Caldwell,  deceased,  to  the  survivor 
of  his  two  daughters,  Jane  H.  and  Helen  C,  and  to  testator's 
brothers  and  sisters  are  good,  and  that  the  two  daughters, 
respectively,  took  life  estates,  both  in  the  personalty  and  real 
estate  of  testator:  That  the  rents  and  profits  of  said  life 
estates,  vested  in   the   daughters,  and  became  transmissible, 


APPEALS  IN  EaUITY.  79 


Columbia,  May,  ISM. 


and  their  respective  administrators  are  entitled  to  an  account 
of  the  same. 

It  is,  therefore,  ordered  that  the  commissioner  do  take  an 
account  of  the  rents  and  profits  to  which  the  said  Jane  H. 
and  Helen  C.  were  respectively  entitled;  and  that  in  taking 
said  account,  the  corpus  of  the  personal  estate  of  the  testator 
bo  charged  primarily  with  the  payment  of  debts,  but  not  in 
such  manner  as  to  disturb  the  actual  profits,  the  realty  and 
personalty  having  been  kept  together,  and  that  the  rents  and 
profits  be  chargeable  with  the  support,  maintenance,  and 
education  of  the  daughters. 

It  is  further  ordered,  that  the  commissioner  do  take  an 
account  of  testator's  guardianship  of  his  two  daughters  ;  and 
if',  upon  said  accounting,  it  should  appear  that  the  balance 
due  by  the  executors  exceeds  the  amount  paid  into  Court, 
they  are  to  be  charged  with  the  excess,  and  if  the  amount  so 
paid  should  exceed  said  balance,  they  are  to  have  a  credit 
for  the  excess. 

The  complainant  appealed  from  so  much  of  the  decree  as 
decides  that  the  limitation  over  of  the  real  and  personal 
estate  to  the  brothers  and  sisters  of  the  testator  is  good,  and 
now  moved  this  Court  to  reverse  the  same. 

The  defendants  appealed  from  so  much  of  the  decree  as 
directs  that  the  debts  of  the  testator  should  be  charged  upon 
the  corpus  of  the  estate,  and  that  the  defendants,  as  executors, 
account  to  the  plaintiff  for  the  rents  and  profits,  on  the 
grounds: 

1.  Because  his  Honor  erred  in  directing  that  the  corpus  of 
the  testator's  estate  should  be  charged  with  his  debts,  when 
it  is  respectfully  submitted  that  the  debts  were  properly  paid 
by  the  executors  out  of  the  increase,  instead  of  breaking  in 
on  the  capital  of  tlie  estate;  there  being  no  portion  directed 
in  the  will  as  to  the  payment  of  the  debts,  and  his  daugh- 
ters equally  entitled  to  both  income  and  capital. 

2.  Because  his  Honor  erred  in  directing  the  debts  to  be 


80  APPEALS  IN  EaUITY. 

Gillam  vs.  Caldwell. 

paid  out  of  the  body  of  the  estate,  when  it  is  respectfully  sub- 
mitted, that  from  a  fair  construction  of  the  whole  will,  it  is 
evident  it  was  the  intention  of  the  testator  to  keep  his  whole 
estate  together,  for  the  purpose  of  paying  his  debts  and 
defraying  the  expenses  of  his  children's  education,  and  also 
to  accumulate  for  their  benefit,  but  not  to  be  enjoyed  until 
their  marriage,  or  attaining  full  age,  and  the  executors  have 
so  managed  the  estate  as  to  carry  out  that  intention  of  the 
testator  to  the  fullest  extent. 

Wilson,  for  complainant. 

Gorlington,  Fair,  contra. 

The  opinion  of  the  Court  was  delivered  by 

Johnston,  Ch.  The  plaintiff's  appeal  appears  to  be  met 
by  the  case  of  McCorkle  vs.  Black,  (7  Rich.  Eq.,  407  ;)  and, 
as  counsel  have  not  attempted  to  distinguish  between  this 
case  and  that,  I  shall  say  no  more  on  that  ground  of  appeal. 

The  principal  controversy  has  been  upon  the  appeal  of  the 
defendants. 

The  effect  of  the  will  is  to  give  a  life  estate  to  the  testator's 
daughters,  (one-half  to  each,)  in  the  body  of  the  estate: — 
which,  necessarily,  vested  in  them  the  income  attached  to 
the  estate  given,  during  its  continuance  in  them.  In  certain 
contingencies  the  remainder  is  given  to  their  issue,  as  pur- 
chasers, or  to  the  brothers  and  sisters  of  the  testator.  The 
daughters, — being  only  tenants  for  life, — have  no  interest, 
whatever,  in  the  remainder  given  to  their  issue,  more  than 
in  that  which  is  given  to  the  brothers  and  sisters,  or  more 
than  if  it  had  been  given  to  entire  strangers.  The  life  estates 
and  remainders  are  entirely  distinct  interests;  and  the  owners 
of  both  are  equally  entitled  to  the  full  benefit  of  what  is  given 
them  ;  and  to  the  protection  of  the  law  for  its  enjoyment, 
undisturbed  and  undiminished  by  the  claims  of  each  other. 
In  other  words,  as  between  the  daughters,  in  this  case,  and 


APPEALS  IN  EaUITY.  81 

Columbia,  May,  1S59. 

the  romaindermeii,  the  same  rule  imist  prevail  which  ohtains 
in  ordinary  cases  between  life-tenant  and  remainderman. 

I  may  observe,  by  the  way,  that  Wfe  estates  are  so  much 
favored,  that  in  certain  cases,  by  constrnction  of  the  statute 
of  17S9,  the  hfe-tenant's  estate  is  protracted  to  the  end  of  the 
year  in  which  he  may  happen  to  die,  and  the  income  of  thai 
year  added  to  his  estate.  Leveret t  vs.  Lcvere/l,  2  McC.  Ch., 
84  ;  and  see  Slock  vs.  Parker,  Id.,  376. 

The  testator  having  given,  in  this  case,  no  direction  respect- 
ing liis  debts,  the  question  is  raised  whether  they  are  dis- 
chargeable out  of  the  income,  which  was  the  sole  interest 
the  daughters  had  ;  or  out  of  the  corpus  of  the  estate,  so  as 
to  throw  the  burden  equitably  on  all  parties,  remaindermen 
as  well  as  life-tenants. 

In  McCaw  vs.  Ji/eivif,  2  McC.  Ch.,  90,  91,  a  line  of  decision 
was  taken  up,  in  relation  to  intestate  estates,  which  has  been 
followed  ever  since.  In  tliat  case  it  was  held  that  the  valua- 
tion of  advancements,  with  a  view  to  partition,  must  be  re- 
ferred to  the  time  of  the  intestate's  death.  This  was  neces- 
sary to  ascertain  the  exact  amotmt  of  each  distributee's  share, 
which  fell  to  him  at  the  same  time. 

In  Mortonvs.  Cah/ivel/,  3  Strob.  Eq.,  lGl,the  same  princi- 
ple was  applied  to  the  debts  of  the  intestate  :  and  it  appears 
to  me  tliat  it  would  be  ditricult  to  set  aside  the  reasoning  in 
that  case,  going  to  shew  that  the  creditor's  interest  on  the 
one  hand,  and  on  the  other  hand  the  right  of  distributees, 
attach  on  the  assets  as  then  existing.     Id.,  164,  et  seq. 

The  same  conclusion,  upon  principle,  must  apply,  as 
respects  debts,  in  cases  of  testacy;  and,  indeed,  it  is  remarked 
in  Duncan  vs.  Tobin,  Dudley  Eq.,  165,  that,  substantially, 
and  equitably,  the  creditors  of  a  testator's  estate,  own  a  por- 
tion of  the  estate  proportioned  to  their  claims  at  testator's 
death,  and  the  residue  only  belongs  to  the  legatees. 

Bearing  this  principle  in  mind,  let  us  endeavor  to  apply  it, 
as  it  must  operate  between  life-tenant  and  remainderman. 
The  rule  as  between  such  parlies,  arising  from  debts  of  the 
7 


82  APPEALS  IN  EaUlTY. 

Gillam  vs.  Caldwell. 

testator,  is  well  stated  in  JVarley  vs.  Warley,  Bail.  Eq.,  39S, 
to  the  efiect,  that  the  life-tenant  must  keep  down  the  inter- 
est:— and,  if  the  debts  are  to  be  paid,  such  part  of  the  estate 
as  is  necessary  for  the  purpose, — or,  if  indivisible,  the  whole, 
must  be  sold,  and  the  surplus,  after  paying  debts,  should  be 
invested  to  the  uses  of  the  will.  (See,  also,  what  is  said,  on 
the  same  subject,  in  Duncan  vs.  Tobin.  supra.) 

It  has  been  urged  that  a  prudent  man  would  pay  his  debts 
out  of  the  income  rather  than  the  corpus  of  liis  estate :  and 
the  same  course  should  be  pursued  by  his  executor.  I 
merely  ask,  does  general  experience  prove  that  those  who 
prefer  to  procrastinate  and  pay  out  of  income  are  really  pru- 
dent ?  Would  prudent  men  generally  give  such  a  direction 
in  an  exigency  such  as  death  ?  And  would  it  do  to  depend 
on  ordinary  executors  to  pursue  such  a  course  ?  But  it  is 
sufficient  for  this  case  to  say  that  the  testator  has  given  no 
such  direction  :  and  the  ordinary  rule  must  prevail. 

I  regard  this  question  as  settled,  in  princii)le,  by  the  case 
o{  Duncan  vs.  Tobin.  The  only  apparent  distinction  between 
this  case  and  that,  is,  that  in  that  case  the  income  alone  is 
the  subject  of  the  express  gift  for  life,  by  the  testator;  whereas 
in  this,  the  corpus  is  given  for  life,  leaving  the  income  to 
accrue  as  the  necessary  consequence.  But  it  is  not  easy  to 
perceive  why  the  benefits  actually  conferred  by  the  will 
should  be  less  or  more  protected  on  account  of  the  mere 
form  in  which  they  are  conferred. 

It  is  ordered,  that  the  decree  be  affirmed,  and  the  appeals 
dismissed. 

DuNKiN  AND  Wardlaw,  CC,  coucurrcd. 

Decree  affirmed. 


APPEALS  IN  EaUITY.  83 


Columbia,  May,  1859. 


Allen  Keith,  Jr.  vs.  The  Executors  of  William  L.  Keith. 
Pro77iissory  A^ofes — Jurisdiction. 

A    promissory  note,  drawn   payable  to  the  drawer  or  bearer,  is  void  at   law  as 
against  the  drawer,  but  in  Eijnity  the  holder  may  be  entitled  to  recover. » 

BEFORE  WARDLAW,  CH.,  AT  PICKENS,  JUNE,  1S58. 

Petition  to  recover  the  amount  of  a  promissory  note,  given 
by  the  testator,  William  L.  Keith,  to  the  plaintiff,  in  place  of 
another  note  which  he  had  given  him  for  money  loaned. 
The  following  is  a  copy  of  the  promissory  note,  the  amount 
of  which  the  plaintiff  now  claimed: 

"  One  day  after  date,  I  promise  to  pay  W.  L.  Keith  or 
bearer,  two  hundred  and  nine  dollars  and  fifty-five  cents,  for 
value  received.     This  27th  March,  1854.       W.  L.  Keith." 

His  Honor  decreed  for  the  plaintiff. 

»  With  deference,  it  is  submitted,  that  the  cases  cited  do  not,  other  authorities 
being  considered,  fully  sustain  the  decision.  In  Ghnn  vs.  Sims,  the  instrument 
held  void  at  law  was  a  sealed  note,  and  in  Devore  vs.  Munday,  it  was  ruled  that 
the  instrument  sued  on  was  valid.  The  Judge,  delivering  the  opinion  of  the 
Court,  in  Devore  vs.  Muvday,  does  say,  that  a  promissory  note  payable  to  the 
drawer  or  bearer,  would  be  void,  but  this  was  said  obiter,  and  no  authority,  ex- 
cept Glenn  vs.  Sims,  is  cited  in  support  of  the  dictum.  The  law  in  relation  to 
negotiable  in.>-truments  contains  |;rinciples  very  different  from  those  affecting 
the  validity  of  sealed  instruments.  It  is  not  very  unusual  for  merchants  to  draw 
bills,  payable  to  their  own  order,  and  then  transfer  them  by  endorsement,  and  it 
is  common  for  banks  to  take  checks,  payable  to  the  drawer  or  bearer,  when 
the  drawer  comes  to  receive  his  own  funds.  But  the  authorities  would  seem 
to  be  very  strong.  In  Chit.  Jiin.,  on  Bills,  at  page  7,  it  is  laid  down  as  familiar 
law,  that  "The  bill  may  be  made  payable  to  the  drawer  or  to  a  third  person. 
It  is  not  essential  that  either  should  be  named,  provided  the  bill  be  made  pay- 
able to  the  order  of  the  drawer  (when  in  effect  it  is  payable  to  him)  or  to 
bearer,"  and  at  page  22,  it  is  said,  these  observations  "are  equally  applicable  to 
promissory  notes."  To  the  same  effect,  sec  Story  on  Prom.  Notes,  g  34,  36,  39  ; 
Chit,  on  Bills,  83  j  Byles  on  Bills,  5,  and  Amer.  Notes. 


84  APPEALS  IN  EaUITY. 

Keith  vs.  Keith. 

The  defendants  appealed,  and  now  moved  this  Court  to 
reverse  the  decree. 

Harrison,  for  appellants,  cited  Devore  vs.  Munday,  5  Strob., 
15;   Tulen  vs.  Ryan,  1  Sp.,  240. 

Reed,  contra,  cited  Glenn  vs.  Caldwell,  4  Rich.  Eq.,  168. 

The  opinion  of  the  Court  was  delivered  by 

DuNKiN.  Ch.  In  1849  or  1850,  the  petitioner  loaned  to  the 
late  William  L.  Keith  the  sum  of  |200,  for  which  he  gave 
him  his  promissory  note,  payable  with  interest.  The  note 
being  unpaid  and  nearly  out  of  date,  the  petitioner,  in  March, 
1854,  sent  his  brother  to  the  maker  for  the  purpose  of  obtain- 
ing payment,  or  procuring  from  him  a  renewal  of  the  note. 
William  L.  Keith,  on  this  application,  gave  to  the  agent  of 
the  petitioner  a  new  note,  bearing  date  27th  March,  1854,  for 
$209  55,  payable,  with  interest,  one  day  after  date,  to  the 
said  William  L.  Keith,  or  bearer.  Upon  receiving  this  note, 
the  plaintiff's  agent  delivered  up  to  the  said  William  L.  Keith 
the  original  note.  William  L.  Keith  died  in  1856;  and  the 
defendants  are  executors  of  his  will.  The  note  remaining 
unpaid,  and  the  plaintiff,  being  advised  that,  in  consequence 
of  the  form  of  the  note,  he  could  maintain  no  action  at  law, 
filed  this  petition  to  obtain  payment,  and  a  decree  was  made 
accordingly. 

From  this  judgment  the  defendants  appealed  on  the 
grounds: 

1.  That  the  note  27ih  March,  1854,  was  void  in  law. 

2.  That  the  plaintiff  has  a  plain  and  adequate  remedy  at 
law,  if  entitled  to  aid  in  any  jurisdiction. 

The  first  proposition,  has  the  authority  of  Glenn  vs.  Sims, 
1  Rich.,  34,  which  was  also  recognized  in  Devore  vs.  Munday, 
4  Strob.,  15,  where  it  was  ruled  that,  on  a  promissory  note, 
payable  to  the  maker  or  bearer,  the  holder  could  maintain  no 
action  at  law  against  the  maker.     But,  in  the  principal  case, 


APPEALS  IN  EaUITY.  85 

Columbia,  May,  1859. 

{Glenn  vs.  Sh7is,)  the  Court,  after  adverting  to  the  reason  of 
the  rule,  proceed  to  say  that  "in  all  such  cases  the  proper 
relief  is  administered  by  the  Court  of  Equity,  which  has 
power  to  proceed  upon  the  original  contract;  while  this  Court 
is  confined  to  the  written  form  to  which  such  contract  has 
been  reduced."  Accordingly,  upon  application  to  the  Court 
of  Equity,  ample  relief  was  aflbrded  to  the  plaintiff,  as  will 
be  seen  in  the  report  of  the  case  under  the  title  Glenn  vs. 
Caldwell,  4  Rich.  Eq.,  16S. 

It  is  ordered  and  adjudged  that  the  decree  of  the  Circuit 
Court  be  aflirmed,  and  the  appeal  dismissed. 

Johnston  and  Wardlaw,  CC,  concurred. 

Appeal  dismissed. 


86  APPEALS  IN  EaUITY. 


Rees  vs.  Rees. 


Jane  E.  Rees  and    Magdaline    Rees,  by  next  friend,  vs. 
Wilson  Waties  Rees. 

Testamentary  Paper — Advancements — Mother —  Grand-son. 

A  paper  writing  by  a  mother,  saying,  "  I  wish  all  I  possess  in  this  world  to 
belong  to  my  dear  son  W.,  and  his  heirs  forever,  both  personal  and  real  ;  and 
everything  in  my  press  and  wardrobe  to  my  dear  sister  M.,  and  to  take 
all  she  wishes  of  my  things ;  my  diamond  ring  and  little  watch  to  K. ;  my  large 
watch  (that  was  my  dear  son's)  to  my  grand-son  J."  Held  to  be  testamentary 
and  void^  for  want  of  attestation. 

The  provision  in  the  Act  of  1791,  in  relation  to  advancements,  applies  as  well  to 
gifts  made  by  a  mother  as  to  gifts  made  by  a  father. 

Where  a  parent  having  a  son,  and  a  grand-son,  issue  of  a  deceased  child,  makes 
a  gift  to  the  son,  it  will  be  treated  as  an  advancement  in  favor  of  the  grand- 
son. 

Where  a  parent  holds  a  bond  against  her  son,  and  destroys  the  bond,  intending 
to  discharge  the  debt,  it  will  be  an  advancement  to  the  amount  of  the  bond. 

Whether  propeity  given  by  a  parent  to  her  son  shall  be  considered  an  advance- 
ment, is  not  a  question  of  intention — no  matter  what  the  parent  intended,  if 
she  leaves  no  will,  it  will  be  considered  an  advancement,  if  otherwise  proper 
to  be  so  considered. 

BEFORE  DUNKIN,  CH.,  AT  SUMTER,  JUNE,  1858. 

The  decree  of  his  Honor,  the  Circuit  Chancellor,  is  as  fol- 
lows: 

DuNKiN,  Ch.  Orlando  S.  Rees  departed  this  life  in  April, 
1852,  intestate.  His  heirs-at-law  and  distributees  were  his 
widow,  Mrs.  Catharine  Rees,  and  his  two  sons,  Wm.  James 
Rees,  and  Wilson  Waties  Rees,  the  defendant — the  last 
named  having  become  administrator.  Early  in  July,  of  the 
same  year,  Wm.  James  Rees  also  died,  leaving  the  plaintiff, 
Jane  E.  Rees,  his  widow,  and  her  co-plaintiff,  Magdaline 
Rees,  his  only  child.  By  his  will  he  had  devised  and  be- 
queathed his  whole  estate  to  his  widow.  Soon  after  the 
decease  of  Orlando  S.  Rees,  and  probably  in  May  or  June  of 


APPEALS  IN  EaUITY.  87 

Columbia,  May,  1S.'39. 

that  year,  Mrs.  Catliarine  Rees,  his  widow,  went  to  reside 
MMth  her  son,  W.  Waties  Rees,  the  defendant,  with  whom  she 
continued  to  reside  until  her  own  death.  Prior  to  24th  Janu- 
ary, 1S53,  a  partition  was  made  of  the  estate,  real  and  per- 
sonal, of  Orlando  S.  Rees,  deceased,  among  the  parties  above 
entitled  to  the  same.  On  the  day  last  mentioned,  the  parties 
executed  a  formal  instrument,  confirming  tiie  partition,  and 
and  making  a  settlement  of  the  estate.  In  the  partition  of 
the  real  estate,  a  tract  of  some  one  thousand  nine  hundred 
and  eigty-two  acres  was  allotted  to  Mrs.  Catharine  Rees  and 
the  defendant,  to  be  held  in  common.  The  slaves  were 
allotted  to  each  in  severalty.  The  field  negroes  of  Mrs.  C. 
Rees  worked  in  common  with  those  of  her  son,  and  the  house 
servants  were  employed  in  domestic  duties.  The  appraised 
value  of  Mrs.  C.  Rees'  negroes  was  $8,92G.  On  the  17th 
December,  1854,  she  sold  a  portion  of  these  slaves  to  her  son, 
the  defendant,  for  §5,8.51,  (a  value  fixed  by  appraisers,  called 
in  for  the  purpose,)  and  took  his  bond  for  the  purchase 
money.  On  the  22d  January,  1855,  Mrs.  Catharine  Rees 
died  intestate,  and  letters  of  administration  on  her  estate  have 
been  granted  to  the  plaintiff,  Jane  E.  Rees.  Her  heirs-at-law 
and  distributees  are  her  son,  the  defendant,  and  Magdaline 
Rees,  an  infant,  the  plaintiff,  being  an  only  child  of  William 
J.  Rees,  who  pre-deccased  his  mother,  the  intestate.  These 
proceedings  were  instituted  2Gth  April,  1858.  The  prayer  of 
the  bill  is,  among  other  things,  for  an  account  of  the  estate, 
real  and  personal,  of  the  intestate,  and  for  a  partition  and 
settlement  of  the  same.  In  reference  to  the  real  estate,  no 
doubt  can  exist  as  to  the  right  of  the  infant  plainlifTto  one 
moiety  of  the  intestate's  interest.  But  the  defendant  submits, 
in  his  answer,  thai  her  interest  was  not  a  full  moiety  of  the 
one  thousand  nine  hundred  and  eighty-two  acres,  and  he 
resists  any  accounts  for  rents  and  profits,  alleging  that  he  cul- 
tivated no  more  than  his  pro]iortion.  No  account  is  sought 
prior  to  the  dc^ath  of  the  intestate.  But,  on  these  matters  of 
the  answer,  [)roof  must  be  m.ide  before  the  commissioner  to 


S8  APPEALS  IN  EaUlTY. 

Rees  V.I.  Rees. 

whom  the  subject  is  referred.  The  bill  states,  that  for  some 
years  prior  to  the  decease  of  the  intestate,  her  son,  the  defend- 
ant, was  her  confidential  agent,  and  had  the  management  of 
lier  affairs,  and  at  her  decease  her  personal  estate  remained 
in  his  possession.  The  answer  of  the  defendant  is  fall  and 
explicit.  He  says,  that  after  his  mother  sold  her  own  resi- 
dence, "  she  removed  to  his  house,  and  from  that  time  his 
mother  and  his  family  lived  in  common  at  his  residence, 
which  had  been  given  him  by  his  father,  and  all  the  negroes 
were  on  his  plantation,  and  under  his  control.  He  cultivated 
a  portion  of  the  one  thousand  nine  hundred  and  eighty-two 
acres,  &c.,  and  he  provided  for  all  the  expenses  of  the  house- 
hold." 

He  admits  the  possession  of  the  negroes  after  his  mother's 
death,  but  says  "  he  knows  of  no  other  chattels  belonging  to 
the  intestate,  except  said  negroes,  the  contents  of  her  ward- 
robe, and  such  articles  of  value  as  she  made  gifts  of,  in 
manner  thereinafter  stated."  He  mentions,  that  after  the 
death  of  the  intestate,  he  paid  debts  of  hers  to  the  amount 
of  about  $300.  In  reference  to  his  bond  of  $5,851,  he  says, 
"he  never  expected  to  pay  the  principal,  for  that  it  was 
understood  between  his  mother  and  himself  that  he  should 
punctually  pay  her  the  interest,  and  she  would  not  exact  the 
principal;  and  he  is  informed  that  she  directed  the  bond  to 
be  destroyed,  or  given  up  to  him,  but  that  he  never  had  pos- 
session of  it." 

The  defendant  further  states,  that  after  the  decease  of  his 
mother,  he  retained  possession  of  all  her  personal  property, 
except  the  gifts,  of  which  a  memorandum  had  been  made, 
and  which  were  in  custody  of  his  aunt;  and  the  defendant 
submits  whether,  under  the  state  of  facts,  (which  he  recapit- 
ulates,) he  is  bound  to  deliver  the  property  to  the  adminis- 
tratrix. His  answer  thus  states  these  facts  on  which  he 
relies:  "Defendant  avers  that  iiis  mother  repeatedly  told  him 
that  what  she  had  would  be  his,  and  his  only,  and  he  was 
informed,  and  believes,  that  on  one  occasion  when  the  mak- 


APPEALS  IN  EaUITY.  89 

Columbia,  May,  1859. 

ing  of  a  will  was  suggested  by  a  friend,  and  declined,  and 
on  another  occasion,  in  the  fall  before  her  death,  she  called 
upon  her  sister  to  bear  witness  that  she  meant  this  defen(3ant 
to  keep  all  her  property."  The  defendant  then  adverts  to  a 
paper  prepared  by  the  witness,  Miss  Mary  VVaties,  on  the 
day  before  the  decease  of  the  intestate,  to  wit:  21st  January, 
1S55,  and  signed  by  the  intestate.  The  paper  is  in  these 
words:  "I  wish  all  I  possess  in  this  world  to  belong  to  my 
dear  son,  W.  W.  Rees,  and  his  heirs,  forever,  both  personal 
and  real;  and  everything  in  my  press  and  wardrobe  to  my 
dear  sister,  Mary  Waties,  and  to  take  all  she  wishes  of  my 
things;  my  diamond  ring  and  little  watch  to  Kate  Waties; 
my  large  watch,  that  was  my  dear  son's,  to  my  grand-son, 
William  James  Rees.  January  21st,  1855.  (Signed)  C. 
Rees."  In  reference  to  this  paper.  Miss  Waties  says:  "The 
day  before  her  death,  she  spoke  to  me  of  some  of  her  wishes 
as  to  the  disposition  of  some  of  her  property,  and  I  wrote 
down  her  wishes  as  she  expressed  them — in  substance,  the 
same  as  the  paper  set  out  in  the  answer.  She  signed  that 
paper.  In  reference  to  the  bequest  to  her  son,  Waties,  (the 
defendant,)  she  said  at  the  time, '  But  what  is  the  use  of  say- 
ing that,  for  everything  is  his?'  \Sniile  these  wishes  were 
being  expressed,  I  ased  her  if  she  did  not  wish  to  leave 
something  to  her  grand-child,  the  daughter  of  htr  son,  Wil- 
liam. She  replied, 'Yes,'  and  designated  a  desk,  which  was 
in  the  room,  but  added,  *  Y^ou  can  give  her  that.'"  The 
witness  afterwards  stated  that  all  the  articles  specifically 
mentioned  in  the  ])aper  were  in  her  room,  in  her  wardrobe, 
desk,  &c.,  of  which  the  witness  had  the  keys.  The  intestate 
told  her  to  give  the  paper  to  the  defendant.  The  answer  of 
the  defendant,  the  entire  testimony  of  Miss  Waties,  and  the 
acts  of  the  parties,  present  the  circumstances  up(»n  which 
the  defendant  relies  to  establish  a  gift  of  the  slaves  by  the 
intestate  to  himself.  Putting  aside,  for  the  present,  the 
paper,  21st  January,  1855,  the  evidence  of  gift  depends  on 
the  declarations  of  the  intestate,  as  proved   by  Miss  Waties. 


90  APPEALS  IM   EaUlTY. 

Rees  vs.  Rees. 

Such  declarations,  especially  as  between  parent  and  child, 
may  be  very  significant  and  positive,  or  they  may  be  wholly 
equivocal.  In  Murdoch  vs.  McDowell,  1  N.  &  McC.  R.,  237, 
Judge  Nott  says:  "The  consummation  of  every /?«ro/ gift  is 
delivery.  There  must  be  an  actual  transmutation  of  posses- 
sion and  property,  and  the  real  question  in  all  such  cases  is, 
whether  the  donor  has  parted  with  his  dominion  over  it." 
The  repeated  declarations  of  the  intestate  to  the  witness 
were,  that  "  all  she  had  was  Waties'."  In  speaking  to  the 
witness  on  the  above  subject,  that  of  everything  being 
Waties',  she  several  times  said  to  her,  "You  can  bear  wit- 
ness to  that."  Both  before  and  after  these  declarations,  (and 
they  were  made  in  various  forms,)  the  negroes  were  in  the 
field,  or  about  the  house,  as  they  had  been,  from  the  time  of 
the  removal  of  the  intestate  to  the  residence  of  her  son.  Do 
these  declarations  furnish  evidence  of  transmutation  of  pos- 
session and  property  in  the  slaves,  from  the  intestate  to  her 
son  ?  Do  they  afford  evidence  that  she  had  already  parted 
with  iier  dominion  over  them,  or  was  it  only  another  mode 
of  expressing  what  her  son  says  she  repeatedly  told  himself, 
"that  what  she  had  would  be  his,  and  his  only."  Miss 
Waties  does  not  fix  the  time  of  the  declarations,  but  refers  to 
them  as  frequently  made  during  the  two  years  and  upwards 
that  she  was  at  the  defendant's.  But  the  defendant,  in  his 
answer,  relies  on  a  particular  conversation  in  the  fall  before 
her  decease,  when  she  called  on  her  sister  (Miss  W.)  "  to 
bear  witness  that  she  meant  the  defendant  to  keep  all  her 
property."  This  was  the  fall  of  1854,  and  the  intestate  died 
22d  January,  1S55.  In  the  fall  of  1S54,  she  was  the  propri- 
etor of  all  the  slaves  allotted  to  her  in  the  partition  and  set- 
tlement of  January,  1853.  But  the  defendant  says,  in  his 
answer,  that  on  the  17th  December,  1854,  he  purchased  from 
his  mother  eleven  of  these  slaves  for  $5,851,  took  from  her  a 
bill  of  sale,  and  gave  her  his  bond  for  the  purchase  money. 
These  negroes  had  been  appraised  by  three  gentlemen  of  the 
neighborhood,  called   in  for  the  purpose   by  the   defendant 


APPEALS  IN  EaUITY.  91 

Columbia,  May,  1859. 

and  his  mother;  one  of  the  appraisers  (W.  E.  Richardson) 
was  examined,  and  said  that  ho,  at  the  same  time,  at  the 
request  of  Mrs.  Rees,  assessed  tiie  hire  of  Hannah,  a  negro 
still  helonging  to  Mrs.  R.,  and  in  defendant's  possession,  at 
$75.  It  seems  superflnous,  then,  to  say  that,  until  about  a 
month  previous  to  the  death  of  the  intestate,  no  gift  had 
been  made,  but  that  the  intestate  continued  to  exercise  the 
usual  acts  of  dominion  which  belong  to  the  proprietor. 
Between  that  time  and  her  decease,  there  is  no  otlier  mate- 
rial circumstance,  except  the  paper,  21st  January,  1855,  and 
the  matters  which  attended  it.  Tliat  paper  is  wholly  testa- 
mentary in  its  character.  The  witness,  who  prepared  the 
paper,  says  the  expressions  are  her  own,  and  not  those  of  her 
sister — that  her  sister  expressed  no  wish  to  make  a  will,  &c. 
The  form  of  expression  is  not  material;  it  is  the  declaration 
by  her  sister  (the  intestate)  of  the  disposition  which  she 
desired  to  be  made  ufler  her  decease.  This  declaration  she 
had  a  perfect  right  to  make;  but  in  order  to  give  validity  to 
the  act,  the  law  has  prescribed  particular  forms  to  be  ob- 
served: "I  wish  all  that  I  possess,  both  real  and  personal,  to 
belong  to  my  son."  This  is  not  a  gift  i7iter  vivos — it  is  not 
supposed  that  it  constitutes  donatio  causa  inortis  of  the 
property  comprehended  with  those  terms;  on  the  contrary, 
signed  by  the  intestate,  it  is  a  perfectly  valid  devise  and 
bequest  of  all  her  real  and  personal  estate,  wanting  only  the 
attestation  of  witnesses;  whatever  she  may  have  done  with 
the  paper  after  it  was  signed,  it  was  only  for  the  preservation 
and  safe-keeping  of  the  memorandum  of  tlie  disposition  she 
desired  to  be  made  when  she  should  be  no  more.  She  had 
made  no  transfer  of  the  property.  She  declined  to  make  a 
will.  "What  is  the  use  of  a  will,  when  everything  is 
Waties',"  and  everybody  must  know  that.  The  meaning  of 
this  is,  "no  one  will  dispute  Waties'  right."  The  intestate 
not  being  sutlicienily  mindful  that  the  only  one  qualified  to 
dispute  his  right  was  an  infiint  of  tender  years,  who  knew 
nothing,  who  could  consent  to  notl.'ing,  and  against  whose 


92  APPEALS  IN  EaUITY. 

Rees  vs.  Rees. 

rights  nothing  could  be  presumed.  When  she  ceased  to 
live,  the  law  cast  on  that  child  the  right  to  one  moiety  of 
her  estate.  The  proceedings  are  instituted  to  ascertain  the 
extent  of  her  (the  infant's)  right.  No  evidence  has  been 
afforded  of  any  valid  gift  of  the  land  and  negroes  in  the 
possession  of  the  defendant,  and  the  imperfect  effort  of  21st 
January,  1855,  while  invalid  as  a  testamentary  disposition, 
confirms  the  inference,  that  none  other  had  yet  been  made. 
The  articles  of  which  Miss  Waties  had  the  possession  and 
control  were  never  in  the  possession  of  the  defendant,  nor 
had  he  the  right  of  possession.  It  may  be  that  they  have 
been  very  properly  delivered  to  the  several  parties  for  whom 
they  were  intended.  Jt  is  only  necessary  now  to  determine 
that  the  defendant  is  in  no  manner  accountable  for  them. 
The  evidence  of  Miss  Waties  shews  very  satisfactorily, 
that  the  bond  of  the  defendant  to  the  intestate  for  $5,851, 
was  given  up  and  destroyed  by  her  directions.  It  is  a  gift  to 
him  of  so  much  money.  The  Act  of  1791  provides  :  that 
nothing  therein  contained  shall  be  construed  to  give  to  any 
child  of  the  intestate  a  share  of  the  estate  where  such  child 
has  been  advanced,  by  the  intestate,  to  an  amount  equal  to 
the  share  of  another  child.  But  if  the  advancement  is  not 
equal  to  the  share  of  another  child,  then  so  much  of  the 
estate  of  the  intestate  shall  be  distributed  to  such  child  as 
shall  make  the  estate  of  all  equal.  The  rights  of  the  parties 
are  fixed  at  the  death  of  the  intestate.  McLaw  vs.  Blewitt, 
2  McC.  Ch.,  105.  It  was  ruled  in  Hamer  vs.  Hamer,  4 
Strob.  Eq.,  124,  that  a  child  who  has  been  advanced,  is  not 
compelled  to  bring  such  advancement  into  hotchpot  unless  he 
claims  some  further  share  of  the  estate  of  the  intestate.  It  is 
ordered  and  decreed,  that  the  defendant  account  to  the 
administratrix  of  Catharine  Rees,  deceased,  for  the  hire  of  the 
slaves  of  the  intestate,  from  the  time  of  her  decease,  and  that 
in  such  accounting  he  be  allowed  for  any  debts  of  the  intes- 
tate paid  by  him,  and  that  the  commissioner  state  the  result 
of  such  account. 


APPEALS  IN   EaUlTV.  93 

Columbia,  May,  1S59. 

It  is  further  ordered  and  decreed,  that  the  commissioner 
take  testimony  and  report  npon  the  vahie  of  the  estate,  real 
and  personal,  of  the  intestate,  at  the  time  of  her  decease,  with 
Hberty  to  report  any  special  matter  preparatory  to  a  final 
order  for  the  settlement  of  (he  estate.  Parties  to  he  at  liberty 
to  apply  for  any  other  and  further  order  which  may  be  neces- 
sary to  carry  this  decree  into  etlect. 

TESTIMONY    TAKEN    BEFORE    THE    COMMISSIONER. 

Miss  Mary  TVaties,  sworn  on  behalf  of  defendant. — After 
the  death  of  Col.  0".  S.  Rees,  Mrs.  Catharine  Rees  went  to 
her  son  (the  defendant's)  to  live  with  him.  Col.  Rees  died 
in  April,  1852,  and  she  went  to  live  with  her  son  in  May  or 
June.  She  had  sold  her  former  residence.  She  carried  her 
house  servants  with  her  to  her  son's. 

The  defendant  lived  on  a  place  of  his  own,  adjoining  the 
plantation  of  his  father's  estate;  and  the  negroes  of  Mrs. 
Catharine  Rees  were  worked  by  the  defendant,  together  with 
his  own,  on  the  estate  place.  Her  negroes  were  few  in  com- 
parison with  the  defendant's.  Her  portion  of  her  husband's 
estate  would  not  have  been  sulficient  for  her  support,  accord- 
ing to  her  former  mode  of  life,  unless  she  had  lived  with  her 
son.  The  negroes  of  Mrs.  Catharine  Rees  (other  than  her 
house  servants)  were  under  the  control  of  the  defendant,  and 
worked  by  him  in  common  with  his  own,  after  she  went  to 
live  with  her  son.  She  sold  some  of  her  negroes  to  the 
defendant.  Several  gentlemen  appraised  the  negroes,  and 
the  defendant  executed  a  bond  to  her  for  the  amount  of  the 
appraised  value,  which  was  over  ^5,000.  That  bond  was 
given  by  Mrs.  Catharine  Rees  to  me,  she  saying  as  she  did 
so,  "This  is  Waties',  give  it  to  him;  put  it  away  for  him." 
I  did  put  it  away,  and  she  never  saw  it  again.  After  that,  and 
before  Mrs.  C.  Rees'  last  illness,  she  said  to  me,  "  You  have 
that  bond  ?"  I  said, "  Yes."  She  said,  "Give  it  to  Waties 
or  burn  it."  I  had  kept  Mrs.  C.  Rees'  keys  and  all  her 
papers.     I  have  heard  her  speak  in  this  manner  while  she 


94  APPEALS  IN  EaUITY. 

Rees  vs.  Rees. 

lived  with  defendant.  That  she  was  living  with  her  son. 
That  all  she  had  was  his.  She  never  ordered  any  of  her 
servants  about.  He  exercised  control  over  them.  I  have 
heard  her  speak  so  often. 

In  her  last  illness,  Mrs.  C.  Rees  spoke  to  me  about  the 
bond.  She  asked:  "  You  gave  it  to  Waties,  or  burnt  it?"  I 
bowed  my  head  in  affirmation,  saying:  "  I  have  done  as  you 
desired"  I  had  burnt  the  bond.  I  was  present  at  the  exe- 
cution of  the  bond  and  the  bill  of  sale  of  the  negroes  from 
Mrs.  C.  Rees  to  defendant.  When  Mrs.  C.  Rees  spoke  in 
connection  with  "  Waties,"  she  had  reference  to  her  son,  the 
defendant.  On  one  occasion  previous  to  her  death,  Major 
Anderson  had  suggested  to  her  to  make  a  will,  which  had 
disturbed  her.  When  I  came  in,  she  spoke  to  me  about  it, 
and  said:  "What  is  the  use  of  my  making  a  will  when 
everything  is  Waties',  and  everybody  must  know  that?" 
She  spoke  emphatically.  All  of  Mrs.  Rees'  property  was 
then  in  defendant's  possession.  In  speaking  to  me  on  the 
above  subject,  (as  to  everything  being  Waties'),  she  several 
times  said  to  me:  "  You  can  bear  witness  to  that." 

The  day  before  her  death  she  spoke  to  me  of  some  of  her 
wishes  as  to  the  disposition  of  some  of  her  property,  and  I 
wrote  down  her  wishes  as  she  expressed  them, — in  substance, 
the  same  as  the  paper  set  out  in  the  answer.  She  signed  that 
paper.  In  reference  to  the  bequest  to  her  son  Waties,  she 
said  at  the  time:  "But  what  is  the  use  of  saying  that,  for 
everything  is  his?"  While  these  wishes  were  being  ex- 
pressed, I  asked  if  she  did  not  wish  to  leave  something  to  her 
grand-child,  the  daughter  of  her  son  William.  She  replied  : 
"Yes;"  and  designated  a  desk  which  was  in  her  room,  but 
added:  "You  can  give  her  that."  This  conversation  arose 
by  her  expressing  a  wish  to  give  me  those  things  which  were  in 
her  room;  and,  as  there  was  no  one  in  the  room,  through  deli- 
cacy I  wrote  her  wishes  down.  She  had  said  to  me:  "  Every- 
thing belongs  to  Waties;"  and,  when  I  wrote  that  paper,  I 
commenced  it  with  the  bequest  to  the  defendant.    The  words 


APPEALS  IN  EaUITY.  95 


Columbia,  May,  1S09. 


in  that  paper  were  mine;  it  was  written  at  my  sni^gestion  and 
not  hers,  and  I  don't  remember  that  I  read  it  over  to  her 
before  she  signed  it.  When  siie  signed  it,  I  gave  it  to  her. 
She  said:  "Give  it  to  Waties."  I  said,  you  do  it;  and  she 
put  it  under  her  pillow.  She  afterwards  gave  it  to  me,  and 
she  told  me  to  give  it  to  defendant.  That  paper  contains  a 
correct  memorandum  of  what  her  wishes  were.  She  expressed 
no  wish  to  make  a  will.  All  the  articles  specifically  men- 
tioned in  that  paper  were  in  her  room, — in  her  wardrobe, 
desk,  &c.,  of  which  I  had  the  keys.  When  she  told  me  what 
she  wanted  me  to  have,  and  I  suggested  writing  it  down,  she 
said  :  "  What  is  the  use,  the  things  will  be  done;  Waties  will 
do  it,"  or  words  to  that  effect.  She  had  often  previously 
and  then  said  :  '*  Everything  is  Waties'."  "  I  give  everything 
to  him."     "Everything  belongs  to  Waties." 

X. — I  burned  the  bond  before  Mrs.  Rees'  death.  Mrs. 
Rees'  negroes  v/orked  on  land  of  her  husband's  estate,  which 
had  been  assigned  to  her  and  defendant.  The  negroes 
received  by  Mrs.  Rees  from  her  husband's  estate,  continued 
to  be  worked  on  those  lands  up  to  the  time  of  her  death,  in 
common  with  the  negroes  of  defendant.  At  the  time  when 
the  paper  spoken  of  was  executed,  Mrs.  Rees  said:  "1  give 
everything  to  Waties."  "Everything  is  Waties'."  She  had 
often  before  said:  "I  give  everything  to  Waties."  I  told 
defendant  of  that  paper  before  her  death,  but  I  don't  remem- 
ber whether  I  irave  it  to  him  before  her  death  or  not. 

XX. — The  negroes  worked  on  the  plantation,  as  referred 
to  in  the  foregoing  testimony,  were  under  the  defendant's 
control.  All  the  negroes  received  by  Mrs.  Rees  from  her  hus- 
band's estate  were  under  defendant's  entire  control;  and  it 
was  while  they  were  under  his  control  that  she  used  the 
expression,  "  Everything  is  Waties',"  &c. 

(It  is  conceded  by  plaintiffs  that  there  is  no  claim  in  this 
case  for  furniture.) 

When  that  paper  was  drawn  up,  I  had  no  idea,  nor  do  I 


90  APPEALS  IN  EaUITY. 

Rees  vs.  Rees. 

think  Mrs.  Rees  had,  that  she  was  making  a  will.     It  was 
simply  a  paper  indicating  her  wishes. 

The  defendant  appealed  on  the  gronnds: 

1.  Becanse  the  evidence  conclnsively  established  a  gift, 
inter  vivos,  of  the  negroes  to  the  defendant  by  his  mother; 
and  his  Honor,  it  is  respectfully  submitted,  should  have  so 
decreed. 

2.  Because  the  paper  writing  of  21st  January,  1855,  recited 
in  the  decree,  was  not,  under  the  circumstances  detailed  in 
the  evidence,  testamentary. 

3.  Because  the  defendant  should  not  be  required  to  account 
for  the  bond  as  an  advancement,  for  the  following  reasons: 

I.  Because  the  law  in  relation  to  advancements  applies 
only  to  fathers  and  not  to  mothers:  when,  therefore,  a  widow 
makes  a  gift  to  her  son,  he  is  not  required  to  bring  it  in  as  an 
advancement. 

II.  Because,  where  there  is  but  one  child,  and  the  issue  of 
a  pre-deceased  child  or  children,  such  child  is  not  required  to 
bring  in,  as  an  advancement,  a  gift  made  to  him,  after  the 
death  of  the  parent  or  parents  of  the  issue. 

III.  Because,  where  a  child  owes  a  parent  a  debt  by  bond, 
and  the  parent  destroys  the  debt  by  destroying  the  bond,  it  is 
no  advancement. 

IV.  Because  the  evidence  shows,  conclusively,  that  the 
defendant's  mother  never  intended  that  he  should  account  for 
the  bond  as  an  advancement ;  and  the  decree,  therefore, 
defeats  her  manifest  and  oft  repeated  purpose  and  intention. 

4.  Because,  if  the  gift  as  to  the  negroes  should  not  be  sus- 
tained, the  defendant  should  not  be  required  to  account  for 
hire  before  the  filing  of  the  bill,  there  being  no  demand  prior 
to  that  time. 

Sumter,  for  appellant. 

The  evidence  of  Miss  Waties,  and  the  answer  of  the 
defendant  being  taken  as  true,  and  the  signature  of  Mrs. 
Rees  as  genuine,  they  present  the  whole  case,  under  the  same 


APPEALS  IN  EaUlTY.  07 

Columbia,  May,  1859. 

impression,  as  in  the  Court  below,  Gee  vs.  Hicks,  Rich.  Eq. 
Ca.,  5 ;  and  present  two  questions,  what  do  they  mean  in 
fact?   what  is  their  vahie  in  law  ? 

The  declarations  of  the  witness  must  refer  to  the  time  of 
the  appraisement,  the  visit  of  Mr.  Anderson,  the  execution 
of  the  bond  and  of  the  paper,  and  cannot  be  referred  back 
further  tiian  the  appraisement,  and  inchide  a  period  com- 
mencing with  the  Fall,  and  the  words  of  the  gift,  importing 
the  consideration  of  her  support,  imply  that  it  had  been  paid, 
and  that  she  was  satisfied  with  it.  The  answer,  in  respect 
to  the  time,  is  precise,  and  consistent  with  the  evidence.  In 
the  Fall  of  1S54,  she  communicates  the  intention  of  bounty; 
on  22d  November  she  has  negroes  appraised  to  $5,851  ;  on 
16th  December  she  took  defendant's  bond  for  that  sum,  the 
interest  to  be  j)unctually  paid,  the  principal  remitted.  What 
is  said  of  Hannah  turns  upon  a  mistake;  is  founded  on  the 
idea  that  there  was  a  hiring  of  one,  after  a  gift  of  the  whole; 
but  Hannah  was  never  hired  ;  the  appraisement  and  sale  (as 
it  is  called)  were  not  cotemporaneons.  The  formal  transac- 
tions between  defendant  and  his  mother,  the  sale  (so-called) 
being  mode  and  part  of  the  gift,  took  place  more  than  three 
weeks  after  the  appraisement.  Mr.  S.  commented  on  the 
probable  motives  for  adopting  this  mode  of  gift.  Intestate 
carried  out,  in  her  own  way,  the  intention  of  bounty  com- 
municated to  defendant,  in  the  Fall,  reserving  only  the  in- 
terest of  the  money,  and  it  was  to  this  state  of  facts  that 
she  called  her  sister  to  bear  witness,  in  a  conversation  with 
her  and  defendant,  immediately  after  the  visit  of  Mr.  Ander- 
son, and  to  this  state  of  facts  she  referred  when,  through  the 
delicacy  of  the  witness,  she  was  to  put  in  writing  some  small 
gifts  \n  her,  and  said,  in  reference  to  the  bequest,  as  it  is 
called,  to  her  son,  "what  is  the  use  of  saying  that,  for  every- 
thing is  his."  The  whole  intention  of  that  paper,  it  is  sub- 
mitted, is  misconceived;  it  is  supposed  to  be  an  imperfect 
effort  to  make  a  will,  when  in  making  it  she  recognized  the 
interest  as  already  vested  in  him,  and  confirmed  it,  not  only 


98  APPEALS  IN  EaUlTY. 

Rees  vs.  Rees. 

by  the  paper,  but  by  getting  his  assent  to  the  minor  gifts, 
which  was  the  object  of  its  delivery. 

The  inference,  from  the  "imperfect  effort,"  that  no  disposi- 
tion had  yet  been  made,  cannot  be  reconciled  witli  the 
evidence — the  giving  again,  as  a  final  act,  what  has  before 
been  given,  is  common,  and  inconclusive.  The  words, 
"  what  is  the  use  of  a  will  when  everything  is  Waties',"  are 
supposed  to  mean  that  no  one  will  dispute  Waties'  right; 
but,  it  is  respectfully  submitted,  what  is  the  meaning  of  this 
testimony  ?  "  When  she  told  me  what  she  wanted  me  to 
have,  and  I  suggested  writing  it  down,  she  said,  'what  is  the 
use,  the  thing  will  be  done,  Waties  will  do  it.'"  The  ques- 
tion was  not  about  disputing  Waties'  right,  which  was 
recognized,  but  about  his  assenting  to  the  other  gifts  ;  and 
the  paper  was  put  under  her  pillow,  and  afterwards  given  to 
witness,  not  for  safe  keeping,  but  in  compliance  with  the 
delicacy  of  the  witness,  for  delivery  to  the  universal  donee, 
for  his  assent  to  the  minor  gifts ;  when  he  assented,  as  he 
did,  before  the  death,  he  accepted  his  own.  There  was 
delivery  and  acceptance. 

Counsel  commented  on  the  evidence.  Was  there  a  doubt, 
on  the  mind  of  that  lady,  that  all  her  property  was  her  son's? 
Why  the  anxiety  to  know  tliat  the  bond  was  destroyed,  and 
that  nothing  should  remain  in  evidence?  By  what  hypothe- 
sis do  counsel,  on  the  other  side,  account  for  these  declara- 
tions and  acts? 

Premising  now,  that  the  possession  of  the  defendant  was 
not  that  of  a  servant,  or  agent,  or  trustee,  or  bailee,  but  that 
of  the  master  of  the  house,  what  do  all  these  declarations 
and  facts  amount  to  in  law? 

Mr.  S.  quoted  and  commented  on  Reid  and  Colcock,  1  N. 
&  McC,  603  ;  Spears  and  Blasinghame  and  Davis  and  Davis, 
1  N.  &  McC,  223,  225;  McDonell  and  Murdoch,  1  N.  &  McC, 
237;  Domat,  vol.  1,  p.  36,  and  vol.  1,  p.  60;  Fowler  and 
Stuart,  1  McC,  504;  Caldwell  and  Wilson,  2  Spears,  77; 
Grangeac  vs.  *drden,  10  Johns.,  293;   Yancey  and  Stone,  7 


APPEALS  IN  EaUITY.  99 


Culumbia,  May,  ISM. 


Ricli.  Eq.,  18;  Etheredge  and  Partain,  10  Rich.  Eq.,  207; 
Blake  and  yo?2c.9,  Bail.  Eq.,  141 ;  this  last,  a  case  of  creditors, 
here  volunteers. 

Cannot  a  Chancellor  presume  a  gift,  where  a  jury  would  ? 
Is  a  change  of  fornm  a  change  of  fact?  If  so,  we  are  enti- 
titled  to  an  issue,  to  have  our  case  ground  out  in  that 
machinery ;  but,  in  fact,  we  ask  no  more  than  what  has 
been  done  and  set  up  in  this  Court. 

The  difficulty  seems  to  be  in  the  delivery  and  transmnta- 
tion  of  possession,  and  McDondl  and  Murdock  is  referred 
to  ;  that  was  a  case  of  donatio  causa  mortis^  and  the  pre- 
siding Judge  had  said  that,  in  other  parol  gifts,  the  evidence 
would  be  sufficient,  but  in  cases  of  this  sort,  actual  manual 
delivery  was  necessary,  and  for  that  misdirection,  and  for 
saying  that  a  jury  might  give  an  alternative  verdict,  the  case 
was  sent  back. 

In  other  cases,  ex.  gr.  in  a  loan,  the  obligation  is  not  con- 
tracted without  delivery.  These  obligations,  where  the  party 
is  to  make  restitution,  are  contracted  by  the  intervention  of 
the  thing,  although  the  consent  of  parties  be  also  necessary. 
Domat,  vol.  1,  p.  36. 

Our  case  is  not  one  of  loan,  or  donatio  causa  mortis,  where 
restitntion  is  contemplated  ;  bnt  even  in  case  of  a  loan,  sup- 
pose Mrs.  R.  had  loaned  a  slave  to  one,  having  them  already 
in  charge, for  ary  pnrpose,  would  a  manu  iraditio  have  been 
necessary  to  the  loan?  or  if  she  had  loaned,  or  committed 
them  in  charge  to  anybody,  and  then  sold  them  to  him, 
would  it  have  been  necessary?  "Delivery  is  made,  if  the 
buyer  had  already  the  thing  sold  in  his  custody,  by  another 
title,  as  if  it  was  deposited  into  his  hands,  or  if  he  had  bor- 
rowed it."  Domat,  vol.  1,  p.  60.  And  so  we  contend  of  a 
gift  inter  vivos,  and,  I  think,  this  is  not,  in  fact,  a  question  of 
delivery,  bnt  of  intention.  If  the  Court  see  that  she  intend- 
ed delivery,  they  were  delivered.  The  transmutation  of 
possession  would  have  been  an  idle  ceremony;  there  was  a 
transmutation  of  property  and  dominion.     "  Declarations  of 


100  APPEALS  IN  EaUITY. 

Rees  vs.  Rees. 

gift  by  an  owner  of  a  chattel,  are  to  be  construed  most 
strongly  against  him,  and  are  to  be  defeated  only  by  une- 
quivocal proof,  on  his  part,  that  a  present  gift  was  not  made." 
Circuit  i7iter  alia,  Yancey  and  Stone,  7  Rich.  Eq.,  18  ;  and 
an  administratrix  for  volunteers  is  in  the  same  position. 

It  is  not  to  be  omitted,  in  any  part  of  the  case,  that  there 
was  a  consideration  for  the  gift,  which  is  fatal  to  the  idea  of 
a  testament  or  of  an  advancement. 

Is  the  paper  of  21st  January,  1855,  a  nullity  ?  or  worse  ? 

In  Brinkerhoff  and  Laurence,  2  Sandford,  401,  406,  it  is 
said:  "Against  sustaining  donations,  either  mortis  causa  or 
inter  vivos,  there  are  many  strong  expressions  in  the  books  of 
the  common  law  ;  the  reason  of  this  is,  that  gifts  of  both 
classes  are  usually  claimed  upon  parol  evidence,  unsustained 
by  any  writing,  and  the  Courts  have  uniformly  set  their  faces 
against  such  claims,  on  account  of  the  great  danger  of  per- 
jury. When  the  intent  of  the  donor  is  proved  under  his  own 
hand,  there  is  no  such  danger,  and,  accordingly,  the  Courts 
have  presumed  a  delivery  in  support  of  the  gift,  on  slight 
evidence." 

Here  it  is  not  perjury,  but  the  Act  of  1824,  that  frightens 
my  friends  on  the  other  side,  more  in  their  character  as  legis- 
lators, perhaps,  than  as  lawyers. 

In  Fowler  and  Stuart,  I  McC,  504,  the  words  were,  con- 
cerning a  horse,  that  the  boy  used  to  ride,  "  I  beg  you  to 
recollect,  I  have  given  that  horse  to  my  son  ;"  suppose,  after- 
wards, in  articulo  mortis,  she  had  written,  I  wish  that  horse 
to  belong  to  my  son,  but  I  wish  him  to  give  the  silver 
mounted  Spanish  saddle  to  B,  and  delivered  the  paper,  ai^d 
he  had  assented,  would  that  have  invalidated  the  previous 
gift,  because  it  had  not  three  witnesses  ? 

It  was  a  paper  writing  delivered,  capable  of  passing,  limit- 
ing, reserving  a  use,  creating  a  trust  in  personalty,  by  delivery 
of  the  writing  itself.  Brimimett  and  Barber,  2  Hill,  547; 
Dwpre  and  Harrington,  State  Rep.,  391 ;  daggers  and  Estes, 
2  Strob.  Eq.,  343. 


APPEALS  IN  EaUlTY.  101 

Columbia,  May,  1859. 

The  paper  confirms  the  intention  and  supplements  deUvery. 
"  If  an  instrument  can  operate  in  some  character  which  ap- 
pears to  have  been  intended,  it  will  not  be  held  testamentary, 
especially  not,  when  it  has  not  the  requisite  formalities  of  a 
will,  and  holding  it  testamentary,  would  be  declaring  it  void." 
Carter  and  Kins;,  10  Rich. 

As  to  the  gift  or  destruction  of  the  bond  being  an  advance- 
ment. 

I.  This  proceeded  from  the  mother,  and  advancements  apply 
to  fathers  only.  Holt  vs.  Frederick,  2  P.  VVms.,  356  ;  Toller, 
300;  2  Williams  Ex'rs,  12S7. 

The  words  of  the  writ,  de  rationabili  parte  bonorum,  are  : 
"  Nee  in  vita  patris  pro?7iot i /nertint .'*  In  Holt  and  Frederick, 
L,  King  says:  The  statute  of  Charles  was  founded  on  the 
custom  of  London,  and  he  might  have  said,  that  it  was  in 
conformity  to  other  customs  of  the  Kingdom  of  Great  Britain, 
and  to  general  custom,  and  to  the  law  de  rationabili  parte 
bonortim.  However  hasty  or  bad  his  reasons,  he  stated  the 
law  of  advancement  correctly,  as  known  in  England,  time 
out  of  mind,  and  used  ever  since  ;  he  was  resisting  a  novelty, 
the  attempt,  by  deriving  the  statute  from  the  successio  ab 
intcstatn,  to  engraft  on  it  the  civil  law  rule,  that  advance- 
ments might  proceed  from  mothers,  wlio  hold  estates  in  that 
law,  in  a  way  different  from  our  laws  of  Haron  and  feme. 

Upon  what  could  collation  proceed  in  a  widow's  estate  ? 
Upon  that  portion  of  her  husband's  estate  distributed  to  her, 
and  once  already  subjected  to  collation  upon  his  death.  The 
words  of  the. third  section  of  our  Act  are  satisfied  by  applying 
ihem  to  the  subject  matter,  to  which,  at  the  tiiue  the  Act  was 
passed,  they  could  alone  be  applied,  namely  :  the  estates  of 
fathers;  it  being  then,  and  before,  and  always  law,  that  the 
tule,  advancement,  only  concerned  father's  estates.  It  is  clear 
that  this  is  an  attempt  to  adopt  the  civil  rule,  and  I  ask  for 
the  authority. 

In  Daves  and  Haywood,  1  Jones  Eq.,  256,  N.  ('.  R.,  it  is 
said  :    "  It  is  true  that  under  the  English  statute  of  distribu- 


102  APPEALS   [N  EaUlTY. 

Rees  vs.  Rees. 

tions,  none  but  the  children  of  an  intestate  father  are  bound 
to  account  for  advancements,  because  the  father  only  is  under 
a  legal  obligation  to  provide  for  his  children  ;  but  our  statute 
of  1792,  re-enacted  in  1836,  uses  the  words  he  or  she,  him  or 
her,  in  reference  to  the  intestate,  t^; Acre  children  are  to  account 
for  personal  property  given  to  them,  or  put  into  their  posses- 
sion in  their  father's  lifetime.  Both  sexes  are  clearly  em- 
braced by  these  words,  and  we  do  not  feel  at  liberty  to  repeat 
them,  but  are  bound  to  hold  that  the  legislature  intended  to 
apply  them  to  an  intestate  mother,  as  well  as  an  intestate 
father." 

II.  Where  there  is  a  child,  and  the  issue  of  a  pre-deceased 
child,  and  a  gift  after  the  death  of  the  father  of  the  issue,  we 
may  look  to  the  reasons,  for  collation,  between  children  and 
grand-children,  viz:  that  a  grand-child  shall  bring  into  hotch- 
pot with  a  child,  because  he  derives,  through  his  father  ;  he 
must  collate,  where  the  parent  would,  what  the  parent  re- 
ceived. Proud  vs.  Turner,  2  P.  Wm.,  560  ;  but  I  think  it  has 
not  as  yet   been  decided   that  a   gift   to  a  grand-child,   the 

father  being  dead,  shall  be  collated.  "  The  statute  of  distri- 
butions is  restricted  to  gifts  from  a  parent  to  a  child,  and  does 
not  include  donations  to  grand-children.  This  holds  clearly 
where  there  are  only  grand-children;  is  it  so  when  there  is  a 
child  and  a  grand-child?  "Where  a  grand-child  hath  re- 
ceived some  advancement,  not  from  his  father,  but  from  his 
grand-father,  whether  or  no  he  shall  collate  with  the  brothers 
of  his  father,  not  decided.  The  grand-child  takes,  as  represen- 
tative of  his  father,  and  therefore,  as  it  seemeth,  should  not 
bring  his  own  portion,  but  only  his  father^s  portion  into 
hotchpot."     Duty  of  Executors,  p.  287. 

So,  if  this  bond  had  been  given  to  complainant,  she  ought 
not  to  collate  it,  and  if  so,  ex  aequali  jure,  defendant  ought  not 
to  collate  with  her. 
"  If  the  grand-father  had  endowed  his  grand-daughter,  the 

father  being  alive,  she  would  be  obliged  to  bring  into  the 
inheritance  of  her  father  the  portion  which  the  grand-father 


APPEALS  IN  EaUITY.  103 

Columbia,  May,  1S59. 

had  given  her;  it  was  the  same  as  if  the  father  had  given 
the  portion  out  of  his  own  estate.  Domat,  vol.  1,  B.  11, 
p.  674. 

III.  The  destruction  of  the  bond  is  not  an  advancement. 
The  bond  constitutes  the  best  evidence  of  advancement;  its 
destruction,  evidence  that  it  was  settled. 

The  synopsis  of  Gilbert  vs.  Wetherall,  Sifnoiis  and  Stuarty 
vol.  1,  p.  444,  (or  vol.  2,  p.  254,)  would  seem  to  decide  that 
the  destruction  of  a  debt,  (or  rather,  in  that  case,  of  the  evi- 
dence of  a  debt)  was  an  advancement;  but  the  case  was  not 
so ;  although  intestate  destroyed  a  notCy  he  said :  "  Now 
Thomas  owes  me  11,000  pounds;"  afterwards  they  signed  an 
account.  The  V.  C.  said:  "The  circumstances  under  which 
the  note  had  been  destroyed, amounted  to  an  equitable  release 
of  a  debt,"  but  held  the  account  stated,  an  advancement,  and 
it  is  clear  that  he  went  into  the  case  to  see  if  it  was  an 
advancement  or  not,  and  if  the  father  so  intended  it;  and 

IV.  It  is  respectfully  submitted,  that  the  destruction  or  gift 
of  the  bond,  or  negroes,  is  not  an  advancement,  because  of 
the  intention  of  the  intestate,  who  did  not  intend  equality, 
and  said  so,  when  the  bond  was  delivered.  Can  a  man  give 
to  issue,  otherwise,  than  by  way  of  advancement  ?  Can  he, 
in  his  lifetime,  by  any  act,  segregate  a  portion  from  his 
estate,  in  favor  of  a  child,  as  well  as  a  stranger?  He  may 
give  the  whole  to  one,  cannot  he  give  a  part,  over  and  above 
to  one;  and  if  lie  does  so,  and  so  says,  and  so  intends,  and 
so  conveys,  by  any  means  the  common  law  will  afford  him, 
how  can  a  legislative  will,  intended  to  apply  lo  what  is  to  be 
distributed^  and  not  to  what  lias  been,  by  himself,  forever 
cut  off,  override  his  complete  and  legal  disposition,  in  his 
lifetime.  Such  interference,  seems  inconsistent,  with  the 
true  idea  of  property,  and  would  restrict  the  jus  dispnnoidi, 
among  issue,  to  a  mode  provided  by  statute,  which  is  ambu- 
latory, and  for  various  reasons  not  acceptable  to  all  persons. 

The  case  of  partial  gifts  supposed,  is  not  as  in  Youni^hhnd 
vs.  Norton,  1   Strob.  Eq.,  125,  an  interfering,  with  distribu- 


104  APPEALS  IN  EaUITY. 

Rees  vs.  Rees. 

tion,  or  valuation  at  Ihe  death,  but  a  severance,  by  a  complete 
act  in  the  lifetime  ;  the  intent  and  quantity  of  intent,  im- 
pressed on  the  transaction  at  the  time;  so,  in  that  case,  it  is 
said,  that  "  what  are  advancements,  may  be  absolutely  fixed, 
by  the  intentions  of  the  parties,  at  the  time,  if  they  can  be 
ascertained,"  and  so  in  Domat,  vol.  1,  b.  1 1,  sec.  iii,  p.  692. 
"  Tlie  things  given  to  children,  or  other  descendants,  that 
they  may  have,  what  is  given,  as  an  advantage,  over  and 
above  what  the  other  children,  their  co-heirs  have,  are  not 
brought,  into  the  mass  of  the  inheritance  collated,  if  it  is 
evident,  that  it  was  the  express  will  of  the  donor,  that  what 
he  gave,  should  remain  with  the  donee,  as  an  advantage, 
over  and  above  his  equal  share,  with  the  rest  of  the  heirs,  or 
that  it  should  not  be  subject  to  collation."  Sive  quispiam 
intestatus  moriatur,  sive  testatus,  omnino  esse  coUationern, 
nisi  expressim  designaverit,  ipse,  se  velle  non  fieri  collation- 
em,^^  &c.,  Nov.  18,  c.  6.  The  only  novelty  here,  is  in  the 
^^sive  testatus,''  which  we  have  not  adopted.  A  parent  may 
give,  and  not  advance,  or  vice  versa  ;  otherwise,  a  father  in 
bestowing  absolutely  an  exchisive  bounty,  upon  a  deserving 
son,  or  in  releasing  an  improvident  one  from  jail,  with  intent 
to  start  him  even  again,  with  the  rest  of  his  children,  would 
have  to  approach  the  object  of  his  bounty,  with  caution,  or 
swear  him  to  secrecy,  for  if  detected,  the  statute,  would 
defeat  his  purpose.  What  a  man  does  with  property,  be- 
longing to  him  at  his  death,  is  a  testamentary  act,  as  in 
Yoinigblood  vs.  Norton  ;  but  the  question  is,  what  does  be- 
long to  him  ?  In  that  case,  the  $600  was  to  be  accounted 
for  in  the  distribution.  Here,  the  principal  of  the  bond  was 
never  to  be  paid — the  interest  to  end  with  her  life,  and 
"  nothing  to  remain  in  evidence.''  Defendant  might  have 
said :  The  negroes  I  hold  by  sale-bill,  and  I  settled  with  my 
molher  for  them.  Mitchell  vs.  Mitchell,  8  Ala.,  414,  422, 
considers  this  question  fully,  and  looks  into  the  custom  of 
London,  where  "the  father,  could  by  any  act,  in  his  lifetime, 
give  away  any  portion,  of  his  personal  estate,  to  one  of  his 


APPEALS  IN  EaUITY.  105 

Columbia,  May,  1S59. 

children,  provided  he  divested  himself  of  all  property  in  it," 
and  concludes,  "  Our  opinion,  therefore,  is,  that  when  either 
money  or  property  is  advanced  to  a  child,  it  will  prima  facie 
be  an  advancement,  under  the  statute,  and  must  be  brought 
into  hotchpot ;  but  it  may  be  shewn,  that  it  was  intended, 
as  a  gift,  and  not  as  an  advancement."  I  contend,  here,  that 
tlie  destruction  of  the  bond  is  presumption  that  it  was  set- 
tled— and  the  omis  to  prove  it  an  advancement  is  on  the 
other  side.  In  Connecticut,  where  the  Act  is  a  copy  of  Act 
of  Charles  II,  they  go  too  far,  in  Johnson  vs.  Belden,  20 
Conn.,  322,  where  it  is  held,  that  there  must  be  satisfactory 
evidence  to  make  a  gift  a  cha7's;cnble  advancement.  There, 
as  in  England,  a  deed  for  love  and  afTection,  is  prima  facie 
proof  of  advancement.  Hatch  vs.  Straight,  3  Conn.,  31.  So 
Meeker  vs.  Meeker,  16  Conn.,  3S3  ;  Phillips  vs.  Chappell,  16 
Geo.,  16. 

The  words  of  our  Act  are  not  when  a  child  shall  have 
received,  but  when  he  shall  have  been  '•^ advanced^''  and 
remains  accountable.  The  condition  in  life  of  the  parties, 
forbids  the  idea  of  advancement.  Defendant  being  of  age, 
married,  settled,  fully  advanced  by  his  father,  in  his  lifetime, 
rich  compared  with  his  mother,  providing  for  her,  a  purchase 
in  liis  name,  by  his  mother,  would  have  been  a  trust,  and  not 
an  advancement. 

If  defendant  is  to  account,  we  ask,  that  he  be  allowed  to 
account,  for  the  negroes  or  the  bond,  at  his  option,  and  only, 
from  the  filing  of  the  bill  or  demand. 

Fraser,  Moses,  for  appellee. 

Spain.,  Richardson,  for  appellant. 

The  opinion  of  the  Court  was  delivered  by 

DuNKiN,  ('h.  It  can  scarcely  be  contended  that,  prior  to 
17th  December,  1854,  when  the  defendant  purchased  from 
the  intestate  slaves  to  the  value  of  §5,800,  she  had  already 
made  to  him  a  valid  gift  of  her  whole  estate.     If  the  paper 


106  APPEALS  IN  EaUlTY. 

Rees  vs.  Rees. 

signed  on  the  day  before  the  death  of  the  intestate  be  not  tes- 
tamentary in  its  character,  but  a  gift,  infer  vivos,  then,  if  the 
intestate  had  recovered,  her  whole  estate  had  passed  from  her; 
for,  by  tiiat  paper,  no  life  estate  is  reserved,  nor  is  the  gift 
thereby  rendered  invalid  in  the  event  of  her  restoration.  It 
is  true  that  the  language  of  the  paper  was  that  of  the  witness 
who  prepared  it;  but,  to  give  it  any  effect  for  the  benefit  of 
the  donee,  it  must  be  regarded  as  adopted  by  the  donor:  and, 
when  she  says,  "  I  wish  all  1  possess  in  this  world  to  belong 
to  my  son  and  his  heirs  forever,  both  real  and  personal,"  and 
disposes  of  her  wardrobe  to  her  sister,  it  is  a  manifest  declara- 
tion of  what  she  intended  to  take  effect  in  relation  to  her 
estate  after  her  decease,  and  fulfils  all  the  requisites  of  a  last 
will  and  testament,  wanting  only  the  attestation  of  witnesses 
to  give  it  effect  as  such. 

The  remaining  grounds  present  questions  not  made  at  the 
hearing,  and,  therefore,  not  considered  in  the  decree;  but  they 
are,  nevertheless,  very  properly  now  submitted  to  the  judg- 
ment of  the  Court.  It  is  contended  that  the  doctrine  of 
advancements  is  not  applicable  to  the  estates  of  widows;  and 
for  this  proposition  the  appellant  adduces  the  authority  of 
Lord  Chancellor  King  in  Holt  vs.  Frederick,  2  Peere  Wil- 
Hams,  356.  It  is  true  it  was  so  held,  "  although,"  as  the 
reporter  says  in  a  parenthesis,  "  without  much  debate."  His 
lordship  decided  that  "  the  statute  of  distributions  was 
grounded  on  the  custom  of  London,  which  never  affected  a 
widow's  personal  estate;"  and  "  that  the  Act  seems  to  include 
those  within  the  clause  of  hotchpot  who  are  capable  of 
having  a  wife  as  well  as  children,  which  must  be  husbands 
only."  If  this  course  of  reasoning  could  be  sustained,  it 
would  apply  not  only  to  the  principle  of  advancements,  but 
to  every  other  canon  in  the  former  statute  of  distributions  in 
relation  to  the  estates  not  only  of  widows,  but  of  married 
women,  and  of  spinsters.  Each  clause  of  that  statute  (A.  D.' 
1712)  2  Stat.,  524,  refers  to  the  estate  as  that  of  a  man  ;  nor 
is  there  any  provision,  as  in  the  Act  of  1791,  that,  in  the 


APPEALS  IN  EaUlTY.  107 

Columbia,  May,  lSr)9. 

event  of  the  death  of  a  married  woman,  leaving  a  husband 
surviving  her,  the  distribution  of  lier  estate  shall  be  the  same 
as  that  of  his.  But  the  argument  of  the  learned  serjeant,  in 
Holt  vs.  Frederick,  is  quite  satisfactory.  "  The  word  /lis  takes 
in  both  sexes,  as  mankind  comprehended  both  ;  and  homo 
was /j/c  vel hcec  ho?7io;  that  the  act  of  Parliament  intended  an 
equality  among  children,  and  this  favorite  doctrine  in  equity 
ouglit  to  be  extended  as  well  in  case  of  a  mother  as  a  father." 
But  the  Statute  of  1791  was  passed  in  pursuance  of  the 
provision  of  the  Constitution  directing  the  Legislature  to 
abolish  the  right  of  primogeniture,  and  provide  for  an  equita- 
ble distribution  of  the  estates  of  intestates.  All  the  principal 
clauses  refer  to  the  intestate  as  him,  and  to  the  estate  as  his. 
The  tenth  and  eleventh  clauses  provide  for  the  distribution 
of  the  estate,  "  on  the  death  of  a  married  woman,"  leaving  a 
husband  or  leaving  no  husband.  But  for  the  distribution  of 
the  estate  of  a  spinster  no  special  provision  is  made;  and  for 
the  obvious  reason  above  stated  in  the  argument  of  Holt  vs. 
Frederick,  and  that  any  more  restricted  construction  would 
fall  short  of  the  declared  purpose  of  the  statute.  But  the 
clauses  should  be  construed  together,  as  ifi  pari  materid. 
The  Act  provides  that,  in  the  event  of  the  death  of  a  widow, 
her  estate  "  shall  be  distributed  among  her  descendants  and 
relations  in  the  same  manner  as  therein  before  directed  in 
case  of  the  intestacy  of  a  married  man."  The  subsequent 
clause  in  relation  to  advancements  refers  to  the  previous 
canon  for  distribution  among  the  children  or  issue  of  the 
intestate,  and  should  be  taken,  and  has  always  been  taken,  as 
part  of  that  canon.  No  new  or  additional  order  of  distribu- 
tion is  declared,  but  provision  is  rather  made  for  an  equitable 
administration  of  the  prior  canon.  The  estate  of  the  widow 
must  be  distributed  in  the  sanie  manner.  Although  no 
express  adjudication  has  been  adduced  from  our  reported 
cases,  yet  such  seems  to  have  been  the  received  opinion  from 
a  very  early  period  after  the  enactment  of  the  statute,  as  may 


108  APPEALS  IN  EaUITY. 

Rces  vs.  Rees. 

be  seen  by  reference  to  Grimke's  Law  of  Execntors,  p.  2S5 
(publislied  in  1797),  and  ex  parte  Lawto7i,  3  Des.,  201,  note. 

The  remaining  grounds  in  relation  to  advancements  may 
be  considered  together.  It  is  true  that,  while  the  child  is 
alive,  a  gift  to  the  grand-child  may  not  be  an  advancement ; 
but  gifts  made  to  the  grand-child,  after  the  death  of  his  pa- 
rent, must  not  only  be  brought  into  the  account,  but  all  pre- 
vious advancements  to  such  parent  in  his  lifetime.  Then  it 
is  said  the  release  of  a  debt,  or  rather  the  intentional  destruc- 
tion by  the  parent  of  the  evidence  of  a  debt  due  to  him  by 
his  child,  is  no  advancement.  On  17  December,  1854,  the 
intestate  owned  eleven  slaves,  which  she,  on  that  day,  sold 
to  iier  son,  taking  his  bond  for  the  purchase  money.  If, 
instead  of  selling  him  the  slaves,  she  had  made  him  a  deed 
of  gift  of  them,  it  would  seem  clearly  an  advancement.  If, 
instead  of  selling  the  slaves  to  her  son,  she  had  sold  them  to 
a  stranger,  taking  his  bond  for  the  purchase  money,  and  she 
had  transferred  the  bond  to  her  son,  it  would  be  not  less  an 
advancement.  And  so,  when  she  released,  or  gave  up,  or 
destroyed,  his  own  bond  to  her,  it  was  an  advancement  of  so 
much  money,  and  must  be  so  accounted  for. 

Then  it  was  said  that  the  intestate  did  not  intend  that  her 
son  should  account  for  the  bond  as  an  advancement.  This 
can  hardly  be  said  to  be  a  question  of  intention.  A  father 
may  give  his  son  half  his  estate  and  declare,  by  the  most 
formal  instrument,  that  he  does  not  intend  it  as  an  advance- 
ment; but,  if  he  afterwards  die  intestate,  the  law  precludes 
such  son  from  any  share  in  the  inheritance,  unless  he  bring 
such  previous  gift  into  liotchpot.  What  is,  or  is  not,  an 
advancement  may  depend  on  circumstances,  as  in  Murrell 
vs.  Murrell,  2  Strob.  Eq.,  148  ;  Cooner  vs.  May,  3  do.,  185  ; 
and  Ison  vs.  Ison,5  Rich.  Eq.,  15;  but  the  mere  declarations 
of  the  donor  cannot  alter  the  operation  of  the  law  either  as 
to  the  character  of  the  gift,  or  even  the  mode  of  valuation. 
See  Youngblooil  vs.  Norton,  1  Strob.  Eq.,  122. 

In   reference   to   the  fourth  ground  of  appeal,  it   may  be 


APPEALS  IN  EaUlTY.  109 

Columbia,  May.  1S59. 

remarked  that  the  infant  plaintifT  is  certainly  entitled  to  an 
account  from  the  death  of  the  intestate,  and,  being  the  sole 
distributee,  the  whole  object  of  the  administration  was  to 
establish  her  rights. 

Tliis  Court  perceive  no  error  in  the  decree  of  the  Circuit 
Court,  and  it  is  ordered  and  decreed  that  the  same  be 
affirmed. 

Johnston  and  Wardlaw,  CC,  concurred. 

Decree  affirmed. 


CASES    IN    EQUITY 

ARGUED    AND    DETERMINED 

IN  THE  COURT  OF  APPEALS, 

At  Columbia,  November  and  December  Term,  1S59. 


CHANCELLORS    PRESENT 


HON.  JOB  JOHNSTON,       HON.   F.  H.  WARDLAW, 
HON.  B.  F.  DUNKIN,  HON.  JAMES  P.  CARROLL.* 


In  the  matter  of  the  Accounts  and  Settlement  of  the 
Estate  of  Joel  W.  Pinson. 

Jippeal  from  Ordinary — Duress. 

Where  proceedings  are  instituted  before  the  ordinary,  against  an  executor,  for 
account,  and  a  dispute  arises  between  a  legatee  and  his  assignees  of  the 
legacy,  as  to  the  validity  of  the  assignment,  an  appeal  from  the  ordinary's 
decision  holding  the  assignment  to  be  invalid,  lies,  under  the  Act  of  1839, 
to  the  Court  of  Equity. 

A  deed  is  not  necessarily  void  because  the  party  was,  at  the  time,  under  re- 
straint— the  restraint  must  be  illegal. 

BEFORK  JOHNSTON,  CH.,  AT   LAURENS,  JUNE,  1859. 

This  was  an  appeal  from  the  decree  of  the  ordinary.     His 

*  Elected  during  the  term. 


APPEALS  IN  EaUITY.  HI 


Columbia,  November  and  December,  ISOO. 


Honor,  the  presiding  Chancellor,  affirmed  the  decree  of  the 
ordinary,  and  the  appellants,  Walker  and  Glen,  appealed. 

Sullivan,  for  appellants. 
Shnpson,  contra. 

The  opinion  of  the  Court  was  delivered  by 

Carroll,  Ch.    Before  considering  the  grounds  of  appeal, 
there    is    a   preliminary   question   to   be   disposed   of.      The 
appeal  here  is  from  the  decretal  order  of  the  Circuit  Court, 
dismissing  the  appeal,  there   heard,  from  the   decree  of  the 
ordinary  of  Laurens.     In  the  settlement  of  the  accounts  of 
the  executor  of  Joel  W.  Pinson,  deceased,  before  the  ordi- 
nary, a  controversy  arose  between  Jabez  Pinson,  one  of  the 
legatees,  and  Walker  and  Glen,  claiming  to  be  the  assignees 
of  his  portion  of  the   testator's  estate.      The  decree   of  the 
ordinary  adjudged  that  the  deed  of  assignment  to  Walker 
and  Glen   was   obtained   through   duress,  and  was,  therefore, 
void  ;  and  the  grounds  of  appeal,  as  well  to  this  Court  as  to 
the  Chancellor  on  the  circuit,  impute  error   to   the   ordinary 
for  having  so  adjudged.     As   the  question  upon    which   the 
appeal  depends  is  one  of  fact,  for  the  decision  of  which  the 
Law   Court    is    peculiarly    fitted,    the    doubt  arose    whether 
the  appeal  from  the  ordinary  ought  not  to  have  been    made 
to   the   Court  of  Common  Pleas  ;  and,  at  the  suggestion  of 
this  Court,  the  point  has  been  argued  here.     The  Act  of  1839, 
concerning  the  office  and  duties   of  ordinary,  II    Slat.,  42, 
provides    that,   "if   the    appeal    shoiild  be   on   a    matter   ol 
account,  the  appellant  shall  docket  the  case  in  the  Court  of 
Equity  for  hearing."  but,  that  "in  all  other  cases  of  appeal 
from  the  Court  of-  Ordinary,  the  appeal  shall  be  to  the  Court 
of  Comtnon  Pleas."     The  appeal  here  is   not  strictly  "on  a 
matter  oi  accnnut,''  in  its  popular  sense,  but  rather  on  a  mat- 
ter preliminary  and  incidental   to  account.     No  exccjjtion  is 
taken  to  the  statement  of  the  accounts  by  the  ordinary.     In- 


112  APPEALS  IN  EaUlTY. 


Estate  of  Joel  W.  Pinson. 


deed,  if  the  executor  had  been  cited  before  the  ordinary,  at 
the  instance  only  of  Walker  and  Glen,  claiming  as  assignees, 
the  ordinary  might,  at  the  very  outset  of  the  proceeding, 
have  decided  against  the  validity  of  the  assignment,  and 
have  declined  taking  any  account  at  all.  It  is  to  be  observed, 
also,  that  the  Act  of  1839  appears  to  assume  that  the  state- 
ment of  the  accounts  is  necessarily  brought  to  the  view  of 
the  Chancellor,  in  the  appeals  to  him  from  the  ordinary;  for 
it  enacts  that,  if  he  approve  the  ordinary's  decree,  the  party, 
in  whose  favor  it  may  be,  may  forthwith  issue  his  writ  of 
fieri  facias  to  enforce  the  same,  and  if  the  Court  should 
modify  the  said  decree,  it  may  order  the  commissioner  to 
re-state  the  accounts,  and,  upon  his  report,  made  and  con- 
firmed, the  party  in  whose  favor  it  may  be,  shall  be  entitled 
"to  like  final  process  for  its  enforcement."  It  cannot  be 
admitted,  however,  that  the  exercise  of  appellate  jurisdiction 
under  the  Act,  whether  by  this  tribunal  or  by  the  Court  of 
Law  Appeals,  is  to  depend  upon  the  mere  election  of  the 
ordinary. 

The  whole  course  of  procedure  of  the  Law  Court  is  una- 
dapted  to  the  adjustment  of  the  complex  and  innumerable 
details  and  i)articulars  entering  into  matters  of  account.  The 
admission  into  an  account  of  a  single  item,  or  its  exclusion, 
ordinarily  atfects  the  entire  result,  and  raises  other  and  new 
questions,  unforseen  at  the  outset.  If  the  determination  of 
appeals  from  the  ordinary,  even  upon  questions  incidental  to 
the  accounting  had  before  him,  be  referred  to  the  Law  Court, 
great  inconvenience  must  arise.  If  cotemporaneously  with 
such  an  appeal,  another  appeal  on  a  matter  of  account,  in  its 
popular  sense,  should  occur,  in  the  course  of  the  same  pro- 
ceeding before  the  ordinary,  all  the  confusion,  incident  to  a 
divided  appellate  jurisdiction,  would  inevitably  ensue.  Jus- 
tice could  not  be  ellected  by  the  agency  of  the  Law  Court  in 
cases  of  this  class,  without  repeated  appeals,  and  after  vexa- 
tious delays.  To  prevent  these  very  evils  it  was  provided  by 
the  Act  of  1839,  that  such  appeals  should  lie  to  the  Court  of 


APPEALS  IN  EaUlTY.  ll:i 

Columbia,  November  and  December,  1S59. 

Equity,  and  thrvt,  upon  the  decree  of  the  ordinary  being 
affirmed,  or  else  modified,  and  the  accounts  re-stated  by  the 
commissioner,  and  his  report  thereupon  confirmed,  final  pro- 
cess should  forthwith  issue  for  enforcing  the  same. 

It  is  not  perceived  that  by  this  construction  violence  is 
done  to  the  words  of  the  Act.  The  term  ''account"  compre- 
hends a  large  head  of  equity  jurisdiction,  and  it  is  in  this 
latter  sense  that  it  should  be  read  when  employed  in  the 
statute  referred  to.  It  follows  that  the  appeal  from  the  ordi- 
nary, in  this  case,  was  properly  entertained  by  the  Chancel- 
lor on  the  circuit. 

The  deed  of  assignment  to  Walker  and  Glenn  is  adjudged 
by  the  ordinary  to  be  invalid,  because  extorted  from  Jabez 
Pinson  by  duress.  A  contract  is  not  necessarily  void,  because 
the  person  of  the  party  bound  by  it,  was  at  the  time  under 
restraint.  Meek  vs.  Anderson,  1  Bail.,  87.  The  Court  has 
failed  to  discover  in  the  evidence  before  the  ordinary,  suffi- 
cient proof  that  illegal  constraint  was  used  in  procuring  from 
Jabez  Pinson  the  assignment  referred  to.  Whatever  presump- 
tions against  the  deed,  upon  that  ground,  may  arise  from  the 
gross  inadequacy  of  the  consideration,  they  are  altogether 
counter-balanced  by  the  repeated,  consistent  and  peremptory 
refusals  of  the  grantor  afterwards  to  rescind  the  contract.  It 
is  ordered  and  decreed  lliat  the  decretal  order  of  the  Chan- 
cellor on  the  circuit,  as  also  the  decree  of  the  ordinary,  be 
reversed,  and  that  the  cause  be  remitted  to  the  Court  of  Ordi- 
nary, without  prejudice  to  any  equitable  defence  or  claim  to 
equitable  relief  on  the  part  of  Jabez  Pinson  against  the  said 
deed,  to  be  asserted  before  the  ordinary,  if  he  liavc  jurisdic- 
tion, or  elsewhere,  as  said  Jabez  may  be  advised. 

DuNKiN,  Johnston  and  Wardlaw,  CC,  concurred. 

Decree  reversed. 
9 


114  APPEALS  IN  EaUITY. 


McCorkle  vs.  Montgomery. 


William  McCorkle  and  others  vs.  Green  B.  Montgomery, 
Jr.,  and  others. 

Fraud — Judgment — Father  and  Son — Consideration — Evi- 
dence—  Vendor'' s  Lien. 

Where  there  are  strong  circumstances  of  suspicion  against  a  judgment  confessed 
by  a  son  to  his  father,  the  father,  on  bill  filed  by  creditors  impeaching  the 
judgment  for  want  of  consideration,  should  show  the  consideration  by  other 
evidence  than  his  own  oath. 

Where  a  judgment  is  set  aside  for  fraud  and  want  of  consideration,  and  a  refer- 
ence is  ordered  for  creditors  to  come  in  and  prove  their  demands,  evidence 
taken  before  the  commissioner  on  the  reference  will  not  be  considered  by  the 
Court  of  Appeals  on  the  appeal  from  the  decree. 

The  doctrine,  that  the  vendor  has  an  equitable  lien  for  the  purchase  money  of 
land  sold,  has  never,  it  seems,    prevailed  in  this  State. 

BEFORE   WARDLAW,  CH.,  AT   CHESTER,  JUNE,  18-58. 

This  case  will  be  sufficiently  understood  from  the  Circuit 
decree  of  his  Honor,  Chancellor  Wardlaw,  the  grounds  of 
appeal,  and  the  opinion  delivered  in  the  Court  of  Appeals. 

The  Circuit  decree  is  as  follows: 

Wardlaw,  Ch.  Tlie  plaintiffs  on  record  are  creditors  by 
decree  of  Green  B.  Montgomery,  Jr.,  and  they  filed  this  bill 
May  23,  1853,  in  behalf  of  themselves  and  other  creditors,  to 
set  aside  certain  judgments,  conveyances  and  assignments, 
which  obstruct  satisfaction  of  their  decree. 

In  June,  1836,  John  Guntharp  became  guardian  of  the 
plaintiffs,  and  for  the  faithful  performance  of  his  office,  gave 
bond,  with  G.  B.  Montgomery,  Jr.,  and  A.  E.  Guntharp  as  his 
sureties.  In  June,  1850,  this  guardianship  was  revoked,  and 
proceedings  were  ordered  by  this  Court  to  be  instituted  on  the 
bond.     Accordingly,  a  bill  was  soon  after  filed.     And  in  June, 


APPEALS  IN  EaUITY.  115 

Columbia,  November  and  December,  1859. 

1852,  a  decree  was  pronounced  in  favor  of  the  [jlaintiffs 
against  the  said  G.  B.  Montgomery,  Jr.,  for  divers  large  sums 
of  money.  To  execute  this  decree,  Vi.fi.  fa.  was  issued,  which 
has  heen  returned  hy  the  sheriff,  nulla  bona.  Before  the 
decree,  John  Guntharp  had  died,  utterly  insolvent,  and  A,  E. 
Guntharp  had  died,  so  much  embarrassed  in  his  affairs  that, 
on  a  bill  filed  by  his  administrator  to  call  in  the  creditors  and 
marshal  the  assets  of  the  estate,  although  there  has  not  been 
yet  a  final  adjustment,  it  has  been  ascertained  that  not  more 
than  one-half  of  the  sum  of  specialty  debts  can  be  satisfied 
out  of  the  assets. 

In  the  fall  of  1849,  G.  B.  Montgomery,  Jr.,  bargained  with 
Geo.  Doag  for  the  Pickett  Mills  and  thirty  acres  of  surround- 
ing land,  and  November  16,  1849,  procured  a  conveyance  of 
the  same  to  be  made  to  his  son,  James  B.  Montgomery,  by 
the  said  Doag,  at  the  price  of  $3,500.  The  day  before  the 
conveyance,  G.  B.  Montgomery,  Jr.,  paid  to  David  McDowell, 
who  was  the  grantor  and  mortgagee  of  Doag,  in  money, 
$466  34;  and  James  B.  and  G.  B.  Montgomery,  Jr.,  and 
Jonathan  B.  Mickle,  executed  their  single  bill  to  McDowell 
for  $833  64,  which  is  still  unpaid.  At  the  time  of  convey- 
ance, G.  B.  Montgomery,  Jr.,  paid  to  Doag,  in  cash,  $2,200 — 
the  balance  of  the  purchase  money.  About  a  week  after- 
wards, G.  B.  Montgomery,  Jr.,  bargained  with  William  T. 
Nichols  for  twenty-one  acres  adjoining  the  mills,  for  $230  6Q, 
paid  him  $40,  or  more,  by  discount,  and  having  with  his  son, 
James  B.,  secured  the  balance,  (which  was  paid  July  1, 
1852.)  procured  the  conveyance  to  be  made  to  the  said  Jas.  B. 
About  Christmas,  1849,  G.  B.  Montgomery,  Jr.,  with  his 
family,  of  which  the  said  James  B.  is  an  inmate,  removed  to 
the  mills,  and  has  resided  there  ever  since.  He  carried  with 
him  the  remaining  merchandise  from  a  country  store,  and 
retailed  it  there.  After  the  removal,  a  costly  dwelling  was 
erected  on  the  premises,  expensive  repairs  made  to  the  mills, 
and  much  valuable  machinery  purchased.  Towards  these 
improvements,  G.  B.  Montgomery,  Jr.,  mainly  contributed  by 


116  APPEALS  IN  EQUITY. 

McCorkle  vs.  Montgomery. 

his  money  and  credit  and  tiie  labor  of  himself  and  slaves, 
and  he  always  exercised  liie  principal  control  and  manage- 
ment of  affairs  at  the  mills — so  that  to  all  who  were  unac- 
quainted with  the  state  of  the  legal  title,  he  seemed  to  be  the 
owner.  The  accounts,  however,  were  kept  in  the  name  of 
James  B.  Montgomery,  and  he  was  commonly  the  organ  in 
paying  and  receiving  money  ;  and  he  sometimes  superin- 
tended the  saw-mill,  and  sometimes  worked  in  a  harness 
shop  at  the  place. 

June  21,  1851,  G.  B.  Montgomery,  Jr.,  confessed  two  judg- 
ments to  his  father,  G.  B.  Montgomery,  Sr. ;  one  for  $2,514, 
and  the  other  for  $1,605  ;  a  judgment  to  his  mother-in-law, 
Nancy  Bailey,  for  $1,189  33  ;  and  a  judgment  to  his  son-in- 
law,  Jonathan  B.  Mickle,  for  $522  3  1.  About  this  time,  J. 
B.  Mickle  obtained  assignments  of  two  other  judgments 
against  G.  B.  Montgomery,  Jr.,  namely,  of  Robert  Ford  for 
$571  14,  and  of  Samuel  G.  Barkley,  for  $786.  All  these 
judgments  bear  interest,  and  from  various  dates. 

June  11,  1852,  G.  B.  Montgomery  executed  an  assignment 
of  his  whole  estate  and  credits  to  J.  B.  Mickle,  in  trust,  to  sell 
and  collect  the  same,  and  from  the  proceeds  to  pay,  Jirst :  the 
expense  for  preparing  the  deed  and  the  commissions  of  the 
assignee  and  his  expenses  about  any  suits  in  collecting  the 
assets  and  effecting  the  trust;  secondly :  the  judgments  above 
mentioned  and  any  others  of  the  same  creditors,  and  a  judg- 
ment of  William  Montgomery  for  $200;  thirdly:  demands 
of  certain  enumerated  creditors,  not  in  judgment,  to  the  sura 
of  $2,622  \  fourthly  :  the  demands  of  all  other  creditors  ;  and 
lastly,  the  surplus,  if  any,  to  the  assignor. 

July  1,  1852,  J.  B.  Mickle,  the  assignee,  sold  the  visible 
property  of  the  assignor  for  the  aggregate  sum,  according  to 
the  addition  in  the  exhibit,  of  $6,586  27 — according  to  my 
addition,  of  $5,997  27.  Some  items  may  be  omitted  from 
the  copy  of  sales  furnished  to  me.  James  B.  Montgomery  is 
set  down  as  the  purchaser  of  the  negroes  Terry,  Molly  and 
child,  Billy,  Jim  and  Sam,  at  the  aggregate  price  of  $2,625, 


APPEALS  IN  EaUITY.  117 

Colmiibia,  November  and  December,  1859. 

and  of  household  furniture  and  otiior  articles,  .^265  50;  G. 
B  Montgomery,  Sr.,  is  set  down  as  the  purchaser  of  Henry 
Harry,  Aaron, Gill  and  George,  for  ^2,142;  G.  B.  Wm.  Mont- 
gomery, of  Tom,  for  $590;  J.  B.  Mickle,  of  Dick,  ^245,  and 
other  articles  for  $50;  and  the  sum  of  the  purchases  of  all 
other  persons  is  $7.9  77.  The  assignee  has  received  very 
little  of  the  amount  of  sales. 

The  object  of  the  bill  is  to  set  aside  for  fraud  the  convey- 
ances to  James  B.Montgomery;  the  confessions  of  judgment 
by  G.  B.  Montgomery,  Jr.,  to  his  kinsmen  aforesaid  ;  the 
assignment  of  the  judgments  of  Ford  &  Barklay  to  Mickle, 
the  assignment  of  G.  B.  Montgomery,  Jr.'s  estate  to  Mickle; 
and  the  sale  under  this  assignment. 

The  bill  is  taken /??'o  coiifesso  against  Nancy  Bailey.  The 
defendants,  G.  B.  Montgomery,  Sr.,  and  Jr.,  James  B.  Mont- 
gomery, G.  B.  Wm.  Montgomery  and  J.  B.  Mickle,  have 
answered  separately;  and  they  severally  deny  all  fraud  in 
their  acts  as  to  the  matters  of  the  suit,  and  make  statemeuis 
intended  to  exhibit  the  fairness  of  their  conduct ;  but,  with 
some  exception  as  to  J.  B.  Mickle,  they  rely  entirely  upon 
their  answers,  and  oifer  no  other  proof  of  their  defences. 

First,  as  to  the  conveyances  by  Doag  &  Nichols  to  James 
B.  Montgomery.  The  plaintiffs  charge  that  the  moneys  for 
the  purchase  and  improvement  of  the  lands  conveyed  were 
furnished  by  G.  B.  Montgomery,  Jr.,  and  that  he  procured 
the  conveyances  to  be  made  to  his  son,  a  minor  without 
means,  in  pursuance  of  an  express  purpose  of  fraud  to  defeat 
the  plaintiffs.  As  to  this  express  purpose  to  defeat  the  plain- 
tiffs, the  evidence  may  have  some  bearing  on  various  points 
of  the  case.  G.  B.  M.,  Jr.,  in  his  answer,  states  that  he  has 
no  recollection  of  having  said  that  he  never  would  pay  the 
plaintiffs,  but  avows  his  motive  to  postpone  his  liability  as 
surety  to  debts  for  which  he  had  received  consideration. 
Robert  Ford  testifies  that  this  defendant  said,  before  removing 
to  llie  mills,  that  he  never  intended  to  pay  the  McCorkle 
bond,  and  would  sooner  rot  in  jail:  Joseph  Arledge  testifies 


118  APPEALS  IN  EQUITY. 


McCorkle  vs.  Montgomery. 


that  the  defendant  said  he  would  not  pay  the  McCorkle 
liabiHty  if  he  could  help  it,  and  Daniel  McCullough  testifies 
that  the  defendant  said  he  could  not  or  would  not  pay  the 
McCorkle  debt.  As  to  the  payment  made  for  the  mills  iu 
money,  G.  B,  Montgomery,  Jr.,  and  his  son,  James  B.  Mont- 
gomery, in  their  answers,  distinctly  aver  that  in  the  negotia- 
tion for  the  land  and  in  the  payment  for  it,  the  father  acted 
merely  as  agent  for  the  son,  and  that  the  son  furnished  the 
money.  They  admit  that  the  son  did  not  attain  twenty-one 
3^ears  until  August,  1S50,  nine  montlis  after  the  conveyance, 
but  they  say  that  by  agreement  bet^veen  tiiem  the  son  was 
entitled  to  the  earnings  of  his  labor  after  he  was  twenty  years 
of  age,  and  that  he  had  made  some  money  in  a  harness 
sho|i,  and  had  acquired  a  horse  and  two  mules  by  advan- 
tageous trades  of  a  mare  given  to  him  by  his  grand-father, 
G.  B.  M.,  Sr. ;  that  in  fact  James  B.  paid  $166  34  from  his 
own  earnings,  and  $2,500  "  furnished  or  loaned"  by  his  said 
grand-father:  of  all  this  detail  there  is  no  proof.  G.  B.  M., 
Sr.,  in  his  answer,  says  nothing  on  the  subject ;  and  whether 
he  was  able  to  advance  such  sum  of  money,  or,  as  was  said 
on  the  other  side,  was  embarrassed  in  his  affairs,  I  do  not 
know  from  the  evidence. 

The  plaintiffs,  however,  have  proved  that  two  mules  were 
purchased  by  G.  B.  M.,  Jr.,  from  Houston,  in  August,  1849, 
for  $250,  and  were  afterwards  sold  by  this  defendant  to 
JNlathews.  They  have  further  proved  the  admissions  of  this 
defendant  that  he  had  used  of  the  funds  of  Westbrook's 
estate,  of  which  lie  was  administrator,  towards  the  cash  pay- 
ments for  the  mills,  $1,400  according  to  the  testimony  of 
Robert  Ford,  or  $1,428,  according  to  the  testimony  of  W.  T. 
Nichols,  and  this  is  confirmed  by  the  testimony  of  Houston, 
that  $1,000  were  paid  to  the  defendant  as  administrator  on 
November  6,  1849,  and  that  the  debts  of  the  estate  were  left 
in  arrear  by  the  administrator,  particularly  one  to  Sibley, 
upon  which  he  said  he  would  pay  interest.  Besides  this,  it  is 
in  evidence   that   he  borrowed  from  various  persons  several 


APPEALS  IN  EQUITY.  119 


Columbia,  November  and  December,  1S59. 


sums  of  money,  shortly  before  the  conveyance  of  Doag,  with 
the  avowed  purpose  of  paying  for  the  mills,  namely:  $300 
from  Robert  Ford,  $100  from  Andrew  McDaniel,  $475  from 
Joseph  Arledge,  and  $270  from  Robert  C.  Bailey.  These 
loans,  with  the  sum  of  Westbrook's  estate  used  for  the  pur- 
pose, closely  approximate  the  sums  paid   to  McDowell   and 


Doag. 


For  the  land  conveyed  by  Nichols,  by  the  confession  of 
the  defendants,  $40,  at  least,  were  paid  by  the  father,  but 
defendants  allege,  without  proof,  that  this  was  repaid  by  the 
son.  The  balance  of  tlie  purchase  money  was  not  paid  to 
Nichols  until  the  assigned  chattels  were  sold  by  Mickle,  July 
1,  1S52.  The  plaintiffs  charge  that  this  balance  and  the 
sums  paid  for  the  erection  of  the  mansion,  the  repairs  of  the 
mills,  and  for  machinery,  were  paid  by  Green  B.  Montgom- 
ery, Jr.,  and  they  show  that  large  sums  of  money  were 
received  by  him  in  1849,  1850  and  1851,  from  the  proceeds 
of  a  tannery  and  a  store  conducted  by  him,  and  from  the 
sale  of  a  tract  of  land  to  Arledge  for  $1,700,  and  of  the  tan- 
nery. G.  B.  Montgomery,  in  his  answer,  admits  the  receipt 
of  money  to  a  large  amount,  but  alleges,  without  proof,  the 
disbursement  of  it  in  payment  of  other  of  his  debts. 

The  substance  of  the  answer  of  James  B.  Montgomery  in 
this  respect  is,  that  all  these  payments  were  made  from  the 
profits  of  the  mills  of  which  he  was  owner;  in  effect,  that 
his  title  to  both  tracts  is  dependent  on  the  fairness  of  his 
purchase  from  Doag.  The  plaintiffs,  however,  show  that  G. 
B.  Montgomery,  Jr.,  sometimes  employed  the  proceeds  of  the 
mills  in  discharge  of  his  own  liabilities;  that  he  bought  a 
circular  saw  from  Aiken  f  )r  $300,  giving  his  own  note,  with 
Gayden  as  surety,  which  he  afterwards  paid;  that  he  repeat- 
edly said  he  had  bought  the  mills,  that  he  sought  counsel 
wfiother  a  conveyance  to  a  minor  was  good  ;  instructed  the 
deeds  to  be  made  to  his  son,  but  became  responsible  himself 
for  the  purchase  money.  The  defendants  endeavor  to  excuse 
the  employment  of  G.  B.  Montgomery,  Jr.,  and  his  slaves,  in 


120  APPEALS  IN  EaUITY. 

McCorkle  vs.  Montgomery. 

the  repair  and  management  of  the  mills,  on  the  ground  that 
such  services  were  but  a  reasonable  compensation  to  James 
B.  Montgomery  for  the  maintenance  of  his  father's  family 
and  the  education  of  the  infant  children  ;  but  not  a  tittle  of 
evidence  supports  this  strange  allegation,  that  an  unmarried, 
infrafamiliated  youth  had  suddenly  become  the  head  of  his 
father's  family. 

The  statement  of  these  transactions  involves  all  the  argu- 
ment necessary.  G.  B.  Montgomery,  Jr.,  paid  for  the  lands, 
and  took  and  retained  possession  of  them  as  proprietor,  and 
procured  titles  to  be  made  to  his  infant  son,  with  the  avowed 
purpose  of  defeating  certain  of  his  creditors.  It  is  a  palpa- 
ble case  of  fraudulent  colhision  between  father  and  son. 
The  conveyance  to  James  B.  Montgomery  must  be  can- 
celled, and  the  title  to  the  lots  declared  to  be  vested  in  G.  B. 
Montgomery,  Jr. 

Tlie  parties  have  entered  into  an  agreement  concerning 
the  sale  of  these  lots;  which,  I  suppose,  has  been  executed. 
K  not,  it  is  ordered  that  the  commissioner  proceed  to  sell 
said  lands,  according  to  the  terms  of  said  agreement,  and  the 
practice  of  the  Court. 

Secondly.,  as  to  the  confessions  of  judgment  by  G.  B. 
Montgomery,  Jr.  All  of  these  confessions  were  on  the  same 
day,  all  to  his  kindred,  and  all,  so  far  as  appears,  by  the 
mere  act  of  this  defendant  alone,  without  the  presence  or 
solicitation  of  tlie  plaintiffs  on  the  records.  They  profess  to 
be  based  on  notes  given  at  or  about  the  time;  but,  as  the 
defendants  allege,  were,  in  fact,  given  to  secure  debts  of  the 
confessing  defendant  of  a  date  long  anterior. 

The  judgment  of  Nancy  Bailey,  beyond  dispute,  cannot 
stand  in  the  way  of  creditors.  She  makes  no  defence  by 
pleading  or  evidence.  The  statement  in  the  answer  of  G.  B. 
Montgomery,  Jr.,  concerning  the  consideration  of  this  judg- 
ment, (which  statement,  however,  if  it  were  of  any  value, 
would  not  be  evidence  for  Mrs.  Bailey,)  is,  substantially,  that 
Robert  C.  Bailey,  son,  and  Andrew  McDaniel,  and  himself, 


APPEALS  IN  EaUITY.  121 

Columbia,  November  and  December,  1S59. 

sons-in-law  of  Nancy  Bailey,  agreed,  with  her  consent,  to 
divide  eqnally  between  them,  a  tract  of  land  belonging  to 
her,  or  the  proceeds  of  it,  reserving  her  nse  of  the  land  for 
life,  and  in  the  resnlt,  the  son  and  other  son-in-law  paid  this 
defendant  the  estimated  valne  of  his  third  in  remainder; 
and  that  the  jndgment  was  given  to  secnre  the  princijial  snm 
so  paid  or  advanced,  with  interest.  Conceding  the  absolnte 
truth  of  this  statement,  no  debt  to  Mrs.  Bailey  grew  ont  of 
the  circumstances.  Robert  C.  Bailey  and  Andrew  McDaniel 
state  that  they  took  the  land  of  Mrs.  Bailey  by  her  consent, 
about  {-dU,  1846,  and  agreed  to  pay,  and  did  pay,  $500  each, 
to  Montgomery  and  wife,  for  their  interest  in  the  land,  and 
received  their  release  of  all  claim  in  the  land;  no  convey- 
ance nor  obligation  was  executed  by  Mrs.  Bailey.  It  is 
manifest  that  this  judgment  is  without  consideration,  and 
that  it  must  be  put  out  of  the  way  of  creditors.  It  is  proper 
to  state  that  Mrs.  Bailey  is  enfeebled  by  age,  and  that,  in  all 
probability,  she  did  not  actively  co-operate  in  any  fraud  of 
her  son-in-law. 

In  relation  to  the  judgments  of  G.  B.  Montgomery,  Sr.,  he 
and  his  son  state,  in  their  answers,  that  the  indebtedness  of 
the  latter  arose  from  loans  of  money,  by  the  former,  between 
1841  and  1851,  and  the  sale  of  some  small  amounts  of  bacon, 
and  other  articles;  and  they  file,  with  their  answers,  separate 
exhibits  of  the  particulars  of  loan  and  sale,  and  of  the  notes 
given  and  received.  These  exhibits  agree  precisely  in  items 
sufficient  to  cover  the  amount  of  the  judgments,  but  (he 
exhibit  of  the  father  contains  additional  particulars  of  in- 
debtedness to  him  by  the  son,  swelling  the  aggregate  much 
beyond  the  sum  of  the  confessions,  and  the  exhibit  of  the 
son  contains  some  particulars  of  credit  not  set  down  in  the 
other  exhibit,  but  not  to  such  extent  as  to  reduce  his  indebt- 
edness below  the  amotint  of  the  judgments.  These  defend- 
ants rest  upon  their  answers,  and  offer  no  evidence.  I  infer, 
from  the  discrepancy  of  the  exhibits  and  the  failure  to  pro- 
duce' any  of  the  notes,  or  other  evidences  of  debt,  that  there 


123  APPEALS  IN  EQUITY. 

McCorkle  vs.  Montgomery. 

was  no  account  stated  between  the  parties  at  the  tune  of  the 
confession,  and  that  the  judgments  were,  at  least,  taken  for 
conjectural  sums.  On  the  other  hand,  the  assailing  evidence 
of  the  plaintiffs  does  not  directly  disprove  the  consideration 
of  the  judgments,  and  stops  with  showing  general  circum- 
stances of  suspicion,  particularly  the  kindred  of  the  parties, 
the  confession  after  the  institution  of  the  suit  in  equity  upon 
the  guardianship  bond,  the  determination  of  the  debtor  to 
delay  or  defeat  satisfaction  of  his  debt  to  plaintiffs,  and  the 
fraud  of  the  debtor  about  the  Pickett  Mills,  and  liis  confes- 
sion to  Mrs.  Bailey  cotemporaneous  with  the  judgments  in 
question.  It  may  be  that  no  special  consequence  follows 
from  the  kindred  of  the  parties.  A  father  has  the  same  right 
as  a  stranger  to  save  his  just  claims,  if  he  can,  in  the  wreck 
of  his  son's  affairs;  yet  it  is  a  matter  affecting  character, 
which  is  simply  the  result  of  the  common  sense,  or  the  sense 
of  equity  of  mankind,  that  he  should  manifest  that  his  claim 
is  really  just,  and  that  he  has  not  improperly  yielded  to  the 
bias  of  paternal  affection  in  any  effort  to  screen  the  property 
of  his  son.  The  fact  that  the  judgments  were  confessed 
after  the  institution  of  the  suit  in  equity,  although  not  abso- 
lutely controlling,  presses  heavily  against  the  judgment  cred- 
itor, where  the  fairness  of  the  judgment  is  otherwise  doubtful. 
Hijip  vs.  Sawyer,  Rich.  Eq.  Cas.,  410.  The  conveyance  of 
property  by  one  sued,  or  expecting  to  be  sued,  however  full 
may  be  the  price,  when  tlie  purpose  of  vendor  and  purchaser  is 
to  defraud  him  prosecuting,  or  about  to  prosecute,  a  right,  is 
fraudulent  and  void.  Pinson  vs.  Lowry,  2  Bail.,  324.  There 
may  be,  on  this  point,  some  distinction  between  the  convey- 
ance of  property,  and  the  creation  of  a  lien  upon  it  by  judg- 
ment; for  one  reason  for  treating  a  conveyance  as  fraudulent 
is,  that  thus,  by  the  consent  of  the  parties,  the  property  of 
the  debtor  is  placed  in  a  state  in  which  it  may  be  easily 
squandered  or  concealed,  and  in  which  it  is  not  subject  to 
the  lien  of  a  judgment  or  execution.  Undoubtedly,  too,  a 
debtor  has  the  right  to  make  preferences  among  his  bona 


APPEALS  IN  EaUITY.  123 

Columbia,  November  and  December,  1S59. 

fide  creditors,  even  by  confession  of  judgment.  Holhird  vs. 
^^nderson,  8  T.  R,,  235.  Still  Chancellor  Harper,  in  Hipp  vs. 
Sawyer,  considers  a  confession  of  jndgnient  as  coming  with- 
in the  same  principle  as  a  conveyance,  (Twine's  case  3  Co., 
SO);  and  Chancellor  Dunkin,  in  Boivie  vs.  Free,  3  Rich.  Eq., 
403,  apjjroves  this  conclnsion. 

In  this  case,  however,  the  concnrrence  of  the  parties  in  an 
express  frand  on  plaintiffs  is  not  satisfactorily  proved,  if  we 
assume  that  the  judgments  were  for  bona  fide  debts.  From 
the  express  resolution  of  G.  B.  Montgomery,  Jr.,  to  defeat 
plaintiffs,  and  from  his  fraud  in  the  conveyance  of  the  mills, 
and  in  confessing  judgment  to  his  mother-in-law,  and  from 
all  the  circumstances  of  the  case,  the  most  unfavorable  con- 
clusion might  well  be  drawn  as  to  him;  but  the  only  evi- 
dence of  fraud  as  to  G.  B.  Montgomery,  Sr.,  is  his  availing 
himself  of  the  judgments  fraudulently  confessed  by  his  son. 
This,  I  think,  he  might  lawfully  do,  if  he  had  established  his 
debt.  There  he  founders.  He  has  proved  no  indebtedness 
of  his  son  to  him,  and,  under  the  circumstances  of  suspi- 
cion attending  the  judgments,  and  when  they  were  directly 
assailed,  the  burden  of  proof  was  ujion  him.  Dc  non  appa- 
rentibus  et  non  existcntibus,  eadeni  est  ratio. 

The  conclusion  is,  that  there  was  no  consideration  for 
these  judgments,  and  that  they  must  be  put  out  of  the  way 
of  creditors. 

As  to  the  judgment  in  favor  of  J.  B.  Mickle,  the  sup|)lc- 
tory  proof  of  his  answer  is  not  complete,  but  sufficient.  He 
shows,  by  the  inventory  of  the  estate  of  Judith  S.  Montgom- 
ery, of  which  he  was  executor  and  principal  legatee,  that  G. 
B.  Montgomery,  Jr.,  was  indebted  to  that  estate  ^400,  with 
interest  from  December  29,  1S46,  by  single  bill,  and  as  his 
answer  states  that  the  judgment  was  to  secure  this  single  bill, 
and  as  the  plaintiffs  have  not  cstablishecJ  any  strong  circum- 
stance impugning  this  judgment,  llie  vacation  of  it  would  be 
Iiarsh  and  unjust.     As  to  the  assignment  to  Mickle,  of  the 


124  APPEALS  IN  EaUlTY. 

McCorkle  i-s.  Montgomery. 

Ford  judgmeiil,  I  am  satisfied  by  the  evidence  of  Ford  and 
McDanie!  tiiat  the  assignment  was  f^iirly  obtained. 

The  proof  of  the  assignment  of  Barclay's  judgment  is  not 
entirely  satisfactory ;  but  as  the  judgment  itself  is  fair,  and 
there  is  no  proof  of  the  satisfaction  of  it,  except  by  the  ad- 
mission of  Mickle's  answer,  which  must  be  taken  altogether, 
that  he  paid  Barclay  from  liis  own  money,  and  took  an 
assignment,  this  assignment  cannot  be  disturbed. 

Thirdly^  as  to  the  assignment  by  Montgomery  to  Mickle, 
on  June  1 1, 1852.  It  is  settled,  in  this  State,  that  a  debtor  has 
the  right  to  make  preferences  among  his  just  creditors,  and  it 
follows  that  his  purpose  to  postpone  some  creditors  is  not 
fraud.  There  is  no  reservation  of  advantage  to  himself  by 
the  assignor  in  this  deed,  which  would  make  the  assignment 
intrinsically  infirm,  and  inoperative.  It  is  also  clear,  that  a 
debtor  cannot  defeat  or  injure  his  creditors  by  any  attempt  to 
disturb  their  liens,  or  to  give  his  estate  to  favored  persons, 
whom  he  may  call  creditors,  when,  in  fact,  he  owes  them 
nothing.  At  the  date  of  this  assignment,  the  plaintiffs  had 
no  lien  upon  the  lands  and  chattels  of  the  assignor,  although 
tliey  soon  afterwards  obtained  judgment  and  execution;  and 
as  to  them,  he  might  assign  his  whole  estate  to  other  just 
creditors.  The  judgments  of  Nancy  Bailey  and  G.  B.  Mont- 
gomery, Sr.,  iiave  been  set  aside  as  to  creditors,  but  they  are 
good  between  the  parties  ;  and  these  persons,  although  they 
have  no  liens,  are  entitled,  even  against  creditors,  to  prove 
their  just  claims,  and  come  in  for  satisfaction,  ratably  with 
creditors  in  tlie  fourth  class  under  the  assignment,  Dicken- 
son vs.  IFay,4  Rich.  Eq.,  412.  I  so  greatly  doubt  the  appli- 
cation to  tliis  case  of  the  principle,  that  a  creditor  controlling 
two  funds  must  first  resort  to  that  fund  which  will  produce 
satisfaction  to  him  with  least  injury  to  other  creditors,  that  I 
shall  not  venture  to  disturb  the  general  scheme  of  the  assign- 
ment. The  conclusion  of  my  judgment  is,  that  the  proceeds 
of  the  lands  and  chattels  of  G.  B.  Montgomery,  Jr.,  whether 
embraced  in  the  assignment  or  not,  and  the  choses  assigned, 


APPEALS  IN  EaUITY.  125 

Columbia,  November  and  December,  1859. 

must  be  first  applied  to  the  satisfaction  of  the  judgments  of 
Micklo,  Wm.  Montgomery,  and  other  hens  not  disturbed  by 
this  decree;  next,  the  expenses  and  commissions  of  the  assig- 
nee, Mickle;  next,  the  creditors  ennmerated  in  the  third  class 
of  the  assignment;  next,  any  residue  of  the  lands  and  chat- 
tels to  the  plaintiffs'  decree  ;  and  lastly,  all  the  residne  of  the 
estate  and  credits  of  the  assignor,  ratably  among  all  his  credi- 
tors, including,  of  course,  the  plaintiffs,  and  G.  B.  Montgom- 
ery, Sr.,  and  Nancy  Bailey,  if  the  last  two  establish  any 
debts. 

Foin^thly,  as  to  the  sales  by  the  assignee.  I  am  of  opinion 
the  purcliases  by  the  assignee,  a  trustee  to  sell,  are  voidable, 
at  the  option  of  creditors  or  any  of  them.  Ex  parte  fVii^gins, 
1  Hill  Ch.,343.  I  also  conchide  that  the  purchases  by  James 
B.  Montgomery  are  voidable,  as  connected  with  the  fraud  in 
the  purchase  of  the  mills.  After  the  sale,  the  negroes  bought 
by  him  returned  to  the  mills,  and  were  controlled  by  G.  B. 
Montgomery,  Jr.,  just  as  before  the  sale.  It  further  appears 
that  one  of  these  negroes  was  sold  by  G.  B.  Montgomery,  Jr., 
and  the  proceeds  applied  to  his  debt  to  Gilliland  &  Howell. 
Another,  Jim,  was  sold  to  Hughes,  at  a  profit  of  §150,  and 
Hughes'  note  delivered  to  the  assignee.  As  the  purchasers 
of  these  two  negroes  were  not  parties  to  the  suit,  no  order  can 
be  made  for  their  re-sale  ;  but  as  to  the  latter,  the  assignee 
must  account  for  him  at  the  price  of  $595.  Moreover,  I 
think  the  purchases  by  G.  B.  Montgomery,  Sr.,  of  the  negroes, 
Harry,  Aaron,  Gill  and  George,  are  voidable  at  the  option  of 
creditors. 

There  is  no  proof  concerning  the  circumstances  of  the  sale, 
not  even  that  it  was  by  public  auction,  or  that  the  creditors 
had  been  convoked  to  appoint  an  agent  to  act  with  the  assig- 
nee under  the  Act  of  182S,  although  this  Act  is  referred  to  in 
the  assignment  with  reference  to  the  commissions  of  the 
assignee.  The  Act  requires  the  assignee  to  call  the  creditors 
together  within  ten  days  after  the  assignment,  for  the  appoint- 
ment of  an  agent,  and  declares  all  sales  and  transfers  of  pro])- 


126  APPEALS  IN  EaUITY. 

McCorkle  vs.  Montgomery. 

erty  by  the  assignee  before  the  appointment  of  an  agent  to  be 
void  and  of  no  effect.  6  Stat.,  366.  Of  the  negroes  above 
mentioned,  Harry  was  returned  after  the  sale  to  a  person  to 
whom  he  had  been  apprenticed,  and  continued  just  as  before 
the  sale;  and  Aaron,  Gill  and  George  returned  to  the  posses- 
sion of  G.  B,  Montgomery,  Jr.,  and  were  controlled  by  him 
as  before  the  sale.  It  may  be  further  remarked  that  the  prices 
of  these  negroes  seemed  not  to  have  been  paid  to  the  assig- 
nee; and  that  James  B.  Montgomery  had  no  means  of  pur- 
chasing except  from  the  profits  of  the  mills,  to  which  he  has 
been  adjudged  not  to  be  entitled,  and  that  G.  B.  Montgomery, 
Sr.,  had  an  unfair  advantage  over  competitors  at  the  sale,  by 
being  ostensibly  and  not  really  a  judgment  creditor.  As  to 
the  negro  Henry,  purchased  by  G.  B.  Montgomery,  Sr.,  as  it 
does  not  appear  that  he  returned  to  the  possession  of  G.B.Mont- 
gomery, Jr.,  there  is  not  sufficient  reason  for  avoiding  the  sale. 
So  as  to  the  sale  of  Tom  to  G.  B.  Wm,  Montgomery,  as  the 
possession  seems  to  have  been  kept  separate,  the  title  of  the 
purchaser  must  stand.  I  conclude  that  the  plaintiffs  are 
entitled  to  a  re-sale  of  all  the  chattels  purchased  by  Mickle, 
James  B.  Montgomery  and  G.  B.  Montgomery,  Sr.,  except 
the  negroes  Henry,  Jim,  and  the  one  sold  to  pay  Gilliland  & 
Howell ;  and  if  the  plaintiffs  choose  to  have  a  re-sale,  it  is 
ordered  that  the  commissioner  proceed  to  sell  according  to  the 
practice  of  the  Court. 

The  defendants  state  in  their  answers  that  some  of  the 
plaintiffs  are  infants,  and  should  sue  by  a  responsible  next 
friend.  No  proof  on  the  point  was  offered ;  but  the  commis- 
sioner must  inquire  and  report  as  to  the  infancy  of  any  of  trie 
plaintiffs,  and  report  suitable  next  friends  for  any  of  tliera 
who  may  be  infants. 

Tlie  defendants  further  suggest  that  the  creditors  interested 
in  the  assignment  in  preference  to  the  plaintiffs  should  be 
made  parties.  This  is  a  creditors'  bill,  and  all  that  is  neces- 
sary, is,  that  the  creditors  should  be  called  in  according  to  the 
procedure  of  the  Court.     And  if  this  has  not  been  done,  it  is 


APPEALS  IN  EaUCTY.  127 

Columbia,  November  and  December,  1S59. 

ordered  that  the  conimissioner  call  in  the  creditors  of  G.  B. 
Montgomery,  Jr.,  by  advertisement  for  tliree  months,  to  pre- 
sent on  oath  and  prove  by  the  rules  of  evidence,  their 
demands,  on  or  hefore  a  day  fixed  by  him,  on  pain  of  being 
barred  from  any  portion  in  the  distribution  of  said  debtor's 
assets.  It  is  ordered  that  this  opinion  stand  for  a  decree,  and 
that  the  parties  have  leave  to  apply  at  the  foot  for  any  orders 
for  tlie  execution  of  it. 

It  is  further  ordered,  that  the  plaintiffs  pay  the  costs  of  G. 
B.  Wm.  Montgomery,  and  that  they  be  reimbursed  for  this 
payment,  and  be  paid  their  costs  of  suit,  generally,  by  the 
defendants,  G.  B.  Montgomery,  Jr.,  G.  B.  Montgomery,  Sr., 
James  B.  Montgomery,  and  Nancy  Bailey,  and  if  these 
defendants  be  unable  to  pay,  that  plaintiffs  be  reimbursed 
and  paid  from  the  assets  in  controversy.  Let  the  costs  of  J. 
B.  Mickle  be  paid  from  the  assets  assigned  ;  and  the  other 
defendants,  except  Mickle  and  G.  B.  Wm.  Montgomery,  pay 
their  own  costs. 

The  defendant,  G.  B.  Montgomery,  Sr.,  appealed  from  the 
decrees  pronounced  by  Chancellors  Wardlaw  and  Dargan,' 
on  the  grounds  : 

1.  Because  in  said  decree  of  Chancellor  Wardlaw,  it  is 
held  that  the  judgments  in  favor  of  G.  B.  Montgomery,  Sr., 
against  G.  B.  Montgomery,  Jr.,  mentioned  in  the  pleadings, 
are  without  consideration,  and  must  be  put  out  of  the  way 
of  creditors,  when  it  is  respectfully  submitted,  that,  as  said 
judgments  were  subsisting,  it  was  incumbent  on  those  assail- 
ing them  to  show  their  want  of  consideration — that  no  such 
evidejice  was  offered — that,  although  not  required  to  show 
the  consideration  of  his  judgments,  the  said  defendant  did 
show  they  were  boiia  fide,  as  complainants  in  their  bill 
charged    that    said   judgments   were   without   consideration. 


'The  Reporior  ha?  been  nnaldo  to  procure  a  copy  of  Chancellor  Dargan's 
decree.  He  does  not  conclude  Uial  it  is  very  important  to  a  full  understanding 
of  the  case. 


128  APPEALS  IN  EQUITY. 

McCorkle  vs.  Montgomery. 

and  confessed  for  the  purpose  of  defeating  their  claims,  and 
defendant  fully  and  explicitly  denied  the  same  in  his  answer. 

2.  Because  said  decree  of  Chancellor  Wardlaw  orders  the 
purchase  by  G.  B.  Montgomery,  Sr,,  of  the  negroes  Aaron, 
Gill,  George  and  Harry,  at  the  sale  made  by  J.  B.  Mickle, 
assignee  of  G.  B.  Montgomery,  Jr.,  to  be  set  aside,  and  said 
negroes  re-sold,  when  it  is  submitted  that  said  sale  was  fair, 
and  should  not  be  decreed  and  held  fraudulent  from  the  fact 
that  the  purchaser  who  bought  them  at  a  public  sale  and 
paid  for  them,  permitted  them,  from  motives  of  kindness 
and  good  feeling,  to  return  into  the  possession  of  the  former 
owner. 

3.  Because  Chancellor  Dargan,  in  his  decree,  orders  said 
negroes,  Aaron,  Gill,  George  and  Harry,  to  be  delivered  up 
by  G.  B.  Montgomery,  Sr.,  and  sold  by  the  Commissioner  in 
Equity. 

4.  Because  the  fact  that  G.  B.  Montgomery,  Sr.,  permitted 
Harry,  after  said  sale,  to  return  to  the  possession  of  the  per- 
son to  whom  he  had  been  bound  as  an  apprentice  by  G.  B. 
Montgomery,  Jr.,  it  is  submitted  shows  no  evidence  of  fraud, 
and  cannot  vitiate  the  sale. 

5.  Because  it  clearly  appears,  from  evidence  offered  since 
the  decree  of  Chancellor  Wardlaw,  that  the  judgments  in 
favor  of  G.  B.  Montgomery,  Sr.,  against  G.  B.  Montgomery, 
Jr.,  were  founded  on  bona  Jide  consideration,  and  said  judg- 
ments ought  not  to  be  set  aside. 

The  defendant,  James  B.  Montgomery,  appealed  from  the 
decrees  of  Chancellors  Wardlaw  and  Dargan,  on  the  grounds: 

1.  Because  said  decree  of  Chancellor  Wardlaw  directs  the 
purchases  made  by  this  defendant  at  the  sale  of  G.  B.  Mont- 
gomery's property,  by  his  assignee,  J.  B.  Mickle,  to  be  set 
aside  for  fraud,  when  it  is  submitted  that,  as  said  purchases 
were  fairly  made  at  a  public  sale,  the  fact  that  this  defendant 
permitted  the  property  he  purchased  to  return  to  his  father's 
possession,  was  no  fraud  on  the  creditors  of  said  G.  B.  Mont- 


APPEALS  IN  EQUITY.  129 

Columbia,  November  and  December,  1859. 

gomery,  Jr.;  no  hindrance  to  them  in  the  collection  of  their 
debts;  and  no  evidence  of  combination  between  said  defend- 
ant and  G.  B.  Montgomery,  Jr.,  to  defraud  complainants. 

2.  Because  Chancellor  Dargan,  in  his  decree,  orders  the 
said  defendant  to  deliver  the  property  purchased  by  him,  as 
aforesaid,  to  the  commissioner,  and  for  the  same  to  be  sold 
by  him  as  the  property  of  G.  B.  Montgomery,  Jr. 

The  plainlifls  appealed  on  the  grounds: 

1.  Because  his  Honor  erred  in  holding  that  the  proceeds  of 
the  sale  of  the  lands  and  mills  of  G.  B.  Montgomery,  Jr.,  are 
subject  to  the  preferences  contained  in  his  assignment  to  J. 
B.  Mickle,  the  same  not  being  embraced  in  his  deed  of 
assignment,  and  he,  in  his  answer,  having  stated  that  he  had 
no  interest  therein. 

2.  Because,  it  being  clear  from  the  proof  that  the  voluntary 
assignment  was  made  to  defeat  the  payment  of  the  claim  of 
complainants,  and  it  being  also  clear,  from  the  proof,  that  all 
the  other  valuable  property,  embraced  in  the  assignment,  was 
purchased  by  parties  therein  preferred,  and  large  claims  in 
said  assignment  being  preferred,  which  were  altogether  ficti- 
tious, the  Chancellor  erred  in  not  decreeing  said  assignment 
to  be  fraudulent  and  void  as  to  complainants. 

The  defendant,  J.  B.  Mickle,  and  David  McDowell,  one  of 
the  creditors  of  G.  B.  Montgomery,  Jr.,  appealed  from  the 
decree  of  his  Honor,  Chancellor  Wardlaw  : 

1.  Because  said  McDowell's  note  was  given  for  the  pur- 
chase money  of  the  mills,  and  should  have  precedence  of 
payment  out  of  the  proceeds  of  the  sale  of  said  mills. 

2.  Because  the  purchase  of  J.  B.  Mickle,  at  the  assignee's 
sale,  was  fair,  and  unimpeached  by  a  shadow  of  testimony; 
and,  therefore,  said  purchase  should  not  be  set  aside. 

McAlihy^  for  plaintiffs. 

Mickle,  IVilliams,  for  defendants. 
10 


130  APPEALS  [N  EaiJlTY. 

McCorkle  vs.  Montgomery. 

[Authorities  cited:  5  Johns.  Rep.,  385;  JVebb  vs.  Daggett, 
2  Barb.,  9;  Jacat  vs.  Corbett,  Chev.  Eq.,  1\\  Le  Prince  vs. 
Guillemot,  1  Rich.  Eq.,  187  ;  ^7iderson  vs.  Fuller,  McM.  Eq., 
27;  Hipp  vs.  Sawyer,  Rich.  Eq.  Ca.,  410  ;  4  Rich.  Eq.,  471  ; 
Brown  vs.  Postell,  I  Hill,  445  ;  Moffatt  vs.  McDuwal,  1  McM. 
Ch,,  434  ;  Hill  vs.  Rodgers,  Riley  Ch.,  7  ;  Bird  vs.  Atkins, 
Rice,  87;  Burton  vs.  Riishton,  4  De  S.,  373;  11  Stat,,  62;  8 
Leigh,  272;  Anderson  vs.  Hook,  9  Ala.,  70;  Union  Bank  vs. 
Toomer,  2  Hill  Ch.,  27;  14  Johns.  Rep.,  493;  3  Johns.  Ch., 
378;   Guignard  vs.  Harley,  10  Rich.  Eq.,  256.] 

The  opinion  of  the  Court  was  delivered  by 

DuNKiN,  Ch.  The  first  and  principal  ground  of  appeal 
relates  to  the  judgment  of  Green  B.  Montgomery,  Sr.  It  is 
true  that  when  the  plaintiff  seeks  to  invalidate  a  judgment 
on  the  ground  of  want  of  consideration,  which  is  denied  by 
the  answer  of  the  judgment  creditor,  the  defendant  may,  un- 
der ordinary  circumstances,  rely  on  his  answer  without  further 
proof.  In  this  case  the  plaintiffs  alleged  and  proved  a  fraudu- 
lent intention  on  the  part  of  Green  B.  Montgomery,  Jr.,  to 
defeat  the  claim  of  the  plaintiffs,  and  that,  in  pursuance  of 
such  intention,  he  had  procured  the  deed  of  the  lands  and 
mills  to  be  executed  to  liis  son,  James  B.  Montgomery.  It 
was  charged  that  the  several  judgments  to  his  father.  Green 
B.  Montgomery,  Sr.,  to  his  mother-in-law,  Mrs.  Bailey,  and  to 
liis  son-in-law,  entered  on  the  same  day,  were  without  consid- 
eration, and  for  the  same  purpose.  It  was  furthermore 
charged  that  at  the  sales  subsequently  made,  the  whole  of 
the  property  of  the  debtor  (with  a  very  inconsiderable  excep- 
tion) was  bid  off  by  his  family,  and  has  ever  since  remained 
in  his  i)ossession  "  and  under  his  dominion  and  control  as 
before  the  sale."  This  was  established  before  the  Chancellor, 
and  under  the  evidence  the  purchase  of  four  of  the  slaves  by 
the  defendant.  Green  B.  Montgomery,  Sr.,  as  well  as  other  pur- 
chases on  the  same  occasion,  were  set  aside,  and  this  judg- 
ment has  the  concurrence  of  the  whole  Court.     It  was  under 


APPEALS  IN  EaUITY.  131 

Columbia,  November  and  December,  1859. 

these  circumstances,  that  the  Chancellor  ruled  that,  although 
"  a  father  has  the  same  right  as  a  stranger  to  save  his  just 
claims,  if  he  can,  in  the  wreck  of  his  son's  affairs,  yet  that  it 
was  a  matter  affecting  character,  and  it  was  simply  the  result 
of  the  common  sense,  or  the  sense  of  equity  of  mankind, 
that  he  should  manifest  that  his  claim  is  really  just,  and  that 
he  has  not  improperly  yielded  to  the  bias  of  paternal  affection 
in  any  effort  to  screen  the  property  of  his  son."  The  Chan- 
cellor held  that  "  under  the  circumstances  of  suspicion  attend- 
ing the  judgments,  and  when  they  were  directly  assailed,  the 
defendant  should  have  proved  the  indebtedness  of  his  son  to 
him."  He  offered  no  evidence  whatever.  It  was  said  for 
him  here  this  was  attributable  to  the  absence  of  his  counsel. 
This  seems  a  misapprehension.  The  solicitor,  who  filed  his 
answer,  not  only  attended  the  references,  but  represented 
another  judgment  assailed  on  the  same  grounds,  and  took  care 
to  adduce  evidence  of  the  consideration  which  was  sustained 
by  the  Court. 

Although  the  Chancellor  set  aside  this  judgment  as  well  as 
that  of  Nancy  Bailey,  (from  which  latter  there  is  no  appeal,) 
he  allowed  the  defendant,  Green  B.  Montgomery,  Sr.,  to  come 
in  among  the  general  creditors,  A  reference  was  accordingly 
had,  and  it  is  now  asked  to  review  and  reverse  the  judgment 
upon  the  new  evidence  adduced.  This  would  lead  to  great 
embarrassment.  Evidence  was  not  only  given  of  an  indebted- 
ness, to  some  extent,  from  Green  B.  Montgomery,  Jr.,  to  his 
father,  between  1842  and  1852,  but  evidence  was  also  given 
that,  during  that  time,  Green  B.  Montgomery,  Sr.,  was  not  in 
a  condition  to  lend  money  to  his  son,  or  to  any  one  else — 
much  less  to  extend  long  credits.  The  Chancellor  has  said 
in  his  decree,  that  as  to  the  alleged  embarrassment  of  Green 
B.  Montgomery,  Sr.'s  affairs  he  knew  nothing  from  the  evi- 
dence before  him.  It  is  not  proposed  to  comment,  in  any 
manner,  upon  the  new  evidence,  which  might  have  a  ten- 
dency to  pre-judge  questions  that  may  arise  upon  the  commis- 
sioner's report.     In  determining  the  merits  of  an   appeal,  it 


132  APPEALS  IN  EaUITY. 

McCorkle  vs.  Montgomery. 

would  be  great  injustice  to  tlie  Chancellor,  and,  not  unfre- 
quently,  much  greater  injustice  to  the  parties,  to  admit  the 
influence  of  evidence  which  might  have  been  adduced,  but 
was  not  before  the  Court.  In  this  case  the  evidence  on  each 
side  has  introduced  a  very  material  element  to  aid  the  judg- 
ment in  determining  the  existence  and  extent  of  the  defend- 
ant's claim  as  a  general  creditor  of  Greeu  B.  Montgomery, 
Jr.,  but  it  can  have  no  weight  to  strengthen  or  invalidate  the 
original  decree. 

Another  ground  of  appeal  is,  that  tlie  note  in  favor  of  David 
McDowell  should  have  precedence  of  payment  out  of  the 
proceeds  of  the  sale  of  the  mill  tract,  because  the  note  was 
given  for  the  purchase  money.  In  this  State  the  doctrine  has 
never  prevailed,  that  the  vendor  of  land  has  an  equitable  lien 
for  the  payment  of  the  consideration.  Wliile  something  is 
due  to  the  vendor  who  parts  with  his  property,  not  less,  cer- 
tainly, is  due  to  the  subsequent  creditor  who  has  trusted  the 
ostensible  as  well  as  legal  owner  of  the  estate,  without  any 
knowledge  of  a  secret  incumbrance.  Upon  this  subject  the 
language  of  Chief  Justice  Marshall,  in  Bailey  vs.  Greenleaf, 
7  Wheat.,  46,  50,  is  instructive.  "To  the  world,"  says  he, 
"  the  vendee  appears  to  hold  the  estate,  divested  of  any 
trust  whatever;  and  credit  is  given  to  him,  in  the  confi- 
dence that  the  property  is  his  own,  in  equity  as  well  as  law. 
A  vendor,  relying  upon  this  lien,  ought  to  reduce  it  to  a  mort- 
gage, so  as  to  give  notice  of  it  to  the  world.  If  he  does  not, 
he  is,  in  some  degree,  accessory  to  the  fraud  committed  on 
the  public,  by  an  act  which  exhibits  the  vendee  as  the  com- 
plete owner  of  an  estate  on  which  he  claims  a  secret  lien.  It 
would  seem  inconsistent  with  the  principles  of  equity,  and 
with  the  general  spirit  of  our  laws,  that  such  a  lien  should  be 
set  up  in  a  Court  of  Chancery,  to  the  exclusion  of  bojia  fide 
creditors.'" 

The  only  authoritative  decision  in  our  own  Courts,  is  that 
of  Wragg  vs.  Creditors  of  Jindrew  Irvine,  which  was  the 
judgment  of  a  full  Court,  and  is  reported  2  DeS.,  509.      In 


APPEALS  IN  EaUITY.  KW 

Columbia,  November  and  December,  1859. 

that  case,  Chancellor  Rutledge,  speaking  for  the  Court,  wholly 
repudiates  the  claim  of  "a  bond  creditor  to  have  an  equitable 
lien  on  the  land  he  has  sold,  unless  he  has  taken  care  to 
secure  that  lien  by  a  mortgage;"  and  such,  he  says,  has  been 
the  law  of  this  country  for  at  least  sixty  years  past.  More 
than  half  a  century  has  elapsed  since  that  decision,  and, 
although,  in  a  note  to  the  case,  further  examination  of  the 
subject  may  seem  to  have  been  invited,  the  Court  is  not 
aware  of  any  subsequent  decision  of  this  tribunal  arraigning 
the  judgment  in  Wragg  vs.  Comptroller  General  el  al.,  credi- 
tors of  Irvine.  It  may  be  added,  that  the  Act  of  1S43, 
requiring  ail  mortgages  of  real  estate,  however  formal  and 
perfect,  to  be  recorded  within  sixty  days,  may  well  be  regarded 
as  a  legislative  declaration  of  the  prohibitory  policy  of  the 
c  )untry  against  any  such  secret  liens. 

The  Court  has  said  thus  much  in  deference  to  the  earnest 
and  elaborate  argument  submitted  by  the  appellant's  counsel. 
But  it  is  clear  on  the  facts  as  before  us,  that,  neither  in  Great 
Britain,  nor  elsewhere,  in  which  the  doctrine  of  the  vendor's 
equitable  lien  is  fully  recognized,  could  the  claim  of  the 
appellant  be  maintained.  According  to  the  report  of  the 
Chancellor,  the  vendor,  in  selling  the  premises  to  Doag,  never 
relied  on  this  evanescent  and  doubtful  equitable  lien,  but  took 
from  him  a  mortgage  of  the  premises  to  secure  the  purchase, 
money.  When  Doag  afterwards  conveyed  to  Montgomery, 
part  of  the  consideration  money  was  paid  in  cash  to  Mc- 
Dowell, and,  for  the  balance,  he  took  from  Montgomery  his 
single  bill,  with  two  sureties,  and  gave  up  or  released  his 
mortgage.  Under  these  circimistances  it  would  be  vain, 
according  to  any  of  the  authorities  cited,  for  McDowell  to 
resort  to  his  original  equitable  lien,  when  he  had  surrendered 
his  legal  mortgage  for  atiother  and  satisfactory  security,  which 
he  was  content  to  receive.  It  is,  perhaps,  just  to  remark,  as 
was  suggested  at  the  bar,  that  this  appeal  is  prosecuted,  not  so 
much  in  behalf  of  McDowell,  as  of  the  sureties  to  the  single 


134  APPEALS  IN  EaUITY. 

McCorkle  vs.  Montgomery. 

bill  who  desire  to  be  subrogated  to  his  supposed  equitable 
lien. 

This  Court  has  already  intimated  a  concurrence  in  the 
views  of  the  Chancellor,  in  reference  to  the  re-sales  ordered; 
nor,  in  relation  to  tiie  other  grounds  of  appeal,  is  it  deemed 
necessary  to  add  anything  to  the  reasonijig  of  the  decree. 

It  is  ordered  and  decreed,  that  the  jndgment  of  the  Circuit 
Court  be  affirmed,  and  the  appeal  dismissed. 

Wardlaw,  Ch.,  concurred. 

Sppeal  dismissed. 


APPEALS  IN  EaUITY.  l:J5 


Columbia,  November  and  December,  1S59. 


Anna  R.  Stokes  vs.  G.  W.  Hodges  and  others. 
W.  L.  Hodges  vs.  the  same. 

Mortgage  —  Delivery  —  Partiiers/iip  —  Interest  —  Surety — 
Joint  Tenant  ^— Use  and  Occupation. 

An  unrecordoil  mortg^a^e  produced  by  one  of  the  morlpagees,  after  the  dealli  of 
the  mortgagor,  held,  under  the  circumstances,  to  be  invalid  for  want  of  sutli- 
cient  proof  of  delivery. 

One  partner,  who  puts  in  his  proportion  of  the  capital,  is  not  entitled  to  charge 
interest  because  the  other  jiartner  has  failed  to  put  in  his  proportion;  the 
articles  of  partnership  not  stipulating  for  the  payment  of  interest. 

Where  two  persons  jiurchased  a  tract  of  land  as  joint  tenants,  and  gave  their 
joint  bond  for  the  purchase  money,  and  one  of  them  paid  beyond  his  propor- 
tion, held,  that,  for  the  amount  paid  over  his  proportion,  he  was  surety,  and 
entitled  to  set  up  the  bond  as  a  specialty  debt  against  the  estate  of  his  co- 
tenant. 

Where  one  joint  tenant  used  and  occupied  the  land  for  several  years  after  the 
death  of  his  co-tenant,  and  on  bill  to  marshal  the  assets  of  the  co-tenant,  wa.s 
allowed  his  demands  as  creditor,  held,  that  he  must  account  for  the  use  of 
the  land,  and  deduct  from  his  demands  a  reasonable  amount  for  the  use  of 
such  proportion  as  he  occupied,  over  his  share. 

BEFORE  JOHNSTON.  CIL,  AT  ABBEVILLE,  .TUNE,  1S5'.». 

The  decree  of  his  Honor,  the  Circuit  Chancellor,  is  as  fol- 
lows : 

Johnston,  Ch.  The  first  of  these  bills  was  brought  by 
Anna  R.  Stokes,  the  widow  and  administratrix  of  Joseph  H. 
8tokes;  and  was  filed  the  28th  of  May,  1S57.  Pending 
tlie  suit,  and  after  certain  proceedings  in  it,  not  necessary  to 
be  particularly  stated  here,  Mr.s.  Stokes  died,  and  W.  L, 
Hodges  became  her  administrator,  and  also  administrator  dc 
bonis  7ion  of  Joseph  H.  Stokes,  and  filed  the  second  bill  to 
revive  her  suit,  which  had  abated  by  her  death. 


136  APPEALS  IN  EaUlTY. 

Slokes  vs.  Hodges. 

Joseph  H.  Stokes  died  the  7th  of  August,  1853.  In  his 
lifetime,  he,  with  the  defendant,  Geo.  W.  Hodges,  who  was 
his  wife's  father,  became  the  joint  purchasers,  at  commis- 
sioner's sale,  of  a  tract  of  land  for  farming  purposes,  which 
is  described  in  the  pleadings.  It  was  sold  as  the  estate  of 
Mays;  and,  on  etfecting  the  purchase,  they  gave  their  penal 
bond,  dated  the  4tli  of  November,  1850,  to  the  commissioner, 
conditioned  to  pay  the  price  ($3,172)  in  two  equal  annual 
instalments,  of  $1,586  each;  the  first  payable  the  4th  of 
November,  1851,  and  the  second  the  4th  of  Novembei, 
1S52,  and  took  titles  to  themselves  jointly.  Of  this  price  it 
appears  a  considerable  part  was  paid  by  Geo.  W.  Hodges. 

The  parties,  each,  furnished  this  land  with  laborers,  mules, 
provisions,  &c.,  but  in  unequal  proportions.  Without  any 
special  articles  between  them,  they  entered  upon  the  cultiva- 
tion of  the  place,  and  made  crops  in  1851,  1852  and  1853. 
Stokes  received  the  proceeds  of  the  crop  of  185],  Hodges 
received  those  of  1852  and  1853:  in  the  latter  of  which  years, 
it  will  be  remembered,  Stokes  died. 

After  his  death,  Mrs.  Stokes  became  administratrix  of  his 
estate;  and  there  having  been  a  partial  accounting  between 
her  husband  and  her  father,  Mr.  Hodges,  a  division  was  also 
made  between  them  of  the  personalty,  (slaves,  mules,  &c,,)  of 
Stokes  and  Hodges,  on  the  plantation  ;  and  the  share  of  Stokes 
was  sold  by  the  administratrix;  of  which  she  bought  the 
principal  portion.  The  land  remained  unpartitioned,  by  some 
arrangement,  the  terms  of  which  do  not  appear.  Mrs.  Stokes 
put  in  negroes,  &c,,  purchased  by  her  at  her  husband's  estate 
sale,  and  the  place  continued  to  be  planted  in  connection  with 
her  father,  who  let  his  forces  remain  on  it.  This  enterprise 
was  continued  for  the  years  1854,  1855,  1856,  1857,  and  till 
September,  1858.  On  the  bill  of  Mrs.  Stokes,  it  was  sold 
the  6th  of  September,  1858,  by  order  of  Court,  and  brought 
the  sum  of  $1,997  15;  a  loss  on  the  original  purchase  of 
$1,174  85.     Mrs.  Stokes  died  that  year. 

At  his  death,  Slokes  was  much  indebted  to  his  father-in- 


APPEALS  IN  EaUITY.  137 

Columbia,  November  and  December,  1S59. 

law,  and  to  many  other  persons;  indeed,  his  estate  is  insol- 
vent. In  his  lifetime,  he  had  entered  into  a  mercantile 
partnership  with  the  defendant,  James  N.  Cochran,  by  arti- 
cles bearing  date  the  2lst  of  July,  1S52;  in  which  it  was 
stipulated,  that  Stokes  should  "  furnish  such  an  amount  of 
means  as  may,  from  time  to  time,  bo  agreed  upon  by  the 
parties  to  be  necessary  for  the  purpose  aforesaid,"  and  that 
Cochran  should  furnish  "an  equal  amount  of  means"  with 
Stokes.  The  partnership  "to  continue  for  the  period  of 
two  years,  at  least,  subject  to  be  discontinued  or  determined 
at  any  time  by  consent  of  parties,  said  parties  to  participate 
equally  in  the  responsibilities  and  profits  of  said  business." 

Stokes  fell  short  of  contributing  as  much  capital  as  Coch- 
ran. The  concern,  which  was  personally  attended  to  by 
Stokes,  until  his  death,  (August  7th,  1S53,)  proved  quite 
unprofitable.  In  fact,  it  did  a  losing  business.  On  the  death 
of  Stokes,  Cochran,  the  surviving  partner,  took  it  in  hand, 
paid  its  debts,  and  as  soon  as  convenient,  brought  it  to  a 
close. 

The  object  of  the  bill  was  to  obtain  a  sale  of  the  land  held 
jointly  by  Stokes  and  Hodges,  and  a  settlement  between 
them;  also,  the  sale  of  a  store-house  and  lot,  held  in  partner- 
ship by  Cochran  &  Stokes,  and  a  settlement  of  their  part- 
nership, and  of  their  mutual  liabilities  to  each  other. 

The  sale  was  ordered,  and  has  been  made;  an  account 
has  been  taken,  as  indicated,  and  also,  as  to  all  the  creditors 
of  Stokes,  (who  were  called  in;)  and  now  the  case  is  taken 
up  on  a  report  upon  these  matters,  to  which  exceptions  are 
taken  both  by  plaintitfand  defendants. 

The  defendant,  George  W.  Hodges,  and  the  plaintiff,  join 
in  their  exceptions,  and  these  will  be  first  considered — 

1.  The  first  of  them  is,  "  Because  the  commissioner  erred 
in  not  giving  George  W.  Hodges  a  lien,  under  his  demands 
against  Stokes,  growing  out  of  the  plantation  partnership, 
upon  so  much  of  the  partnership  property  as  was  sold  as  the 
individual  estate  of  J.  H.  Stokes.     The  same   was  partner- 


i:iS  APPEALS  IN  EQUITY. 

Stokes  vs.  Hodges. 

ship  property,  which  the  partner  had  a  specific  lien  upon,  to 
pay  partnership  debts." 

This  is  an  objection  proper  for  George  W.  Hodges,  and  not 
for  the  plaintiff;  and  the  latter  has  no  right  to  be  heard  upon 
the  exception. 

The  exception  assumes  that  this  joint  planting  establish- 
ment was  a  partnership;  and  that  the  incidents  of  a  part- 
nership proper  apply  to  it;  which  is  very  questionable  as  a 
general  proposition.  I  shall  not  dispute,  however,  that  Mr. 
Hodges  might  have  a  right  to  set  up  as  equitable  assignee 
the  claims  of  creditors  of  this  concern,  discharged  by  him, 
and  claim  payment  out  of  any  portion  of  the  joint  property. 
The  property  out  of  which  such  payment  is  claimed  here, 
was  not  joint  property,  but  the  individual  property  of  Stokes; 
so  acknowledged  by  Hodges  when  he  voluntarily  separated 
it  from  his  own  of  the  same  description,  and  delivered  it  up 
to  the  administratrix  to  be  sold  as  the  estate  of  her  intestate. 
This  act  was,  also,  a  waiver  of  the  lien  he  now  sets  up,  if 
such  lien  had  existed  ;  and  he  is  to  be  regarded  as  an  ordi- 
nary creditor  of  Stokes'  estate.     This  exception  is  overruled. 

2.  The  second  of  these  exceptions  is,  that  "the  commis- 
sioner erred  in  postponing  Hodges'  mortgage,  covering  the 
debt  paid  by  him  to  Clinkscales,  to  the  claim  of  James  N. 
Cochran,  who,  it  is  alleged,  is  not  a  creditor  subsequent  to 
the  date  of  the  mortgage." 

3.  The  tiiird  is,  "  Because  the  Clinkscales  money  was  bor- 
rowed by  Stokes  to  pay  partnership  debts,  and  James  N. 
Cochran  being  a  partner  of  the  firm  of  Cochran  &  Stokes, 
had  actual  notice  of  said  mortgage." 

4.  The  fourth  exception  is,  "Because,  in  March,  1853,  the 
mortgage  was  executed  ;  and  on  the  23d  December,  1853, 
the  said  James  N.  Cochran  himself  made  an  endorsement 
thereon,  recognizing  its  validity;  and  it  is  denied  that  his 
claim,  now  presented,  arose,  or  was  due  to  him,  in  that  inter- 
val of  time." 

5.  The  fifth  exception  is,  "Because  the  whole  of  his  claim 


APPEALS  IN  EaUITY.  139 

Columbia,  November  and  December,  1S59. 

(Cochran's)  againet  the  estate  of  Stokes,  without  any  regard 
to  how  or  when  it  originated,  must  be  referred  bacic  to  the 
date  of  the  articles  of  partnership  between  him  and  Stokes," 
(i.  e.,  21st  July,  1S52.)  The  facts  are  only  to  be  gathered  as 
they  are  dispersed  among  the  papers  before  me ;  and  it  is  no 
little  impediment  in  performing  this  task,  ihat  frequently 
there  is  an  omission  of  dates  where  they  might  have  been 
taken  down. 

It  appears  that  Stokes,  desiring  to  borrow  about  $2,500, 
and  expecting  to  get  it  from  Mr.  Dorn,  drew  up  a  note  for 
that  amount,  payable  to  Dorn,  which  he  procured  to  be 
signed,  as  surety,  by  one  M.  C.  Zeigler,  saying  he  intended 
to  get  it  also  signed  by  George  W.  Hodges  and  F.  A.  Connor; 
and  he  exhibited  to  Zeigler,  at  the  time,  the  following  instru- 
ment, which  has  been  denominated  a  mortgage: 

"  South  Carolina, 
Abbeville  District,  March  2,  1S53. 

*'  Know  all  men,  &c.,  that  I,  J.  H.  Stokes,  of  District  and 
State  aforesaid,  do,  now  and  hereafter,  relinquish  all  claim, 
right  and  title  to,  on  four  negroes,  viz:  Cato,  Julia,  Charity 
and  Easter,  to  Gen.  G.  W.  Hodges,  M.  C.  Zeigler  and  F.  A. 
Connor,  their  administrator,  executor,  or  assigns,  until  the 
consideration,  for  which  the  relin([uishment  is  made,  is  fully 
gratified.  The  object  of  the  above  relinquishment  is  to  secure 
G.  W.  Hodges,  M.  C.  Zeigler  and  F.  A.  Connor,  from  risk  in 
going  security  to  J.  H.  Stokes  for  the  amount  of  $2,500,  bor- 
rowed money. 

"  In  case  said  amount  is  paid,  or  said  sureties  are  entirely 
released  in  twelve  months,  the  above  obligation  or  relinquish- 
ment is  null  and  void.  Otherwise  to  remain  in  full  force 
and  virtue. 


Signed,  sealed  and  delivered 
in  the  presence  of 

J.  H.  Connor. 
G.  M.  Connor." 


J.  H.  STOKES,  [l.  s.] 


140  APPEALS  IN  EaUITY. 

Stokes  vs.  Hodges. 

Stokes  failed  to  get  the  money  from  Dorn.  But  being  still 
in  pressing  need  of  it,  he  executed  a  note  dated  the  10th 
March,  1S53,  endorsed  by  J.  F.  Marshall,  for  $2,500,  which 
was  discounted  by  the  Commercial  bank  at  Columbia,  and 
the  money  "applied  to  the  debts  of  the  firm."  This  note 
Was  payable  at  sixty  days  ;  and  when  it  was  about  to  mature, 
he,  through  Marshall,  got  Clinkscales  to  loan  him  $2,500,  to 
pay  the  bank,  on  a  note  drawn  by  himself,  Hodges  and  Con- 
nor, (Zeigler  being  accidentally  absent.)  This  bears  date  3d 
May,  1853,  and  on  it  Stokes  made  the  following  endorse- 
ment: "The  within  note  is  left  with  F.  B.  Clinkscales  as 
collateral  security  for  cash  advanced  J.  H.  Stokes,  until 
redeemed  by  him  with  another  note  on  F.  A.  Connor  and  G. 

W.  Hodaes,  4th  May,  1853. 

J.  H.  STOKES." 

This  instrument  was  never  registered;  nor  is  delivery 
proved  except  as  evidenced  by  Hodges'  possession  of  it. 

On  it  is  the  following  endorsement,  which  is  proved  or 
admitted  to  have  been  drawn  up  by  the  defendant,  James  N. 
Cochran  ;  aiid  bears  date  after  Stokes'  death: 

"This  instrument  witnesseth  that  I,  Anna  R.  Stokes, 
administratrix  of  the  estate  of  Joseph  H.  Stokes,  deceased, 
do  hereby  give  my  consent  that  the  negroes,  Cato,  Julia, 
Charity  and  Easter,  specified  in  the  within  assignment,  shall 
be  sold  with  the  balance  of  the  property  of  said  estate,  sub- 
ject, however,  to  the  provisions  of  said  assignment;  and  that 
the  proceeds  of  sale  of  said  negroes  shall  be  exclusively 
applied,  first,  to  the  payment  of  the  debt  intended  to  be 
secured  by  the  aforesaid  assignment.  Said  proceeds  not  to 
be  made  liable  to  the  creditors  of  said  estate  generally,  until 
the  aforesaid  debt  be  liquidated.  The  balance,  if  any,  after 
payment  of  said  debt,  to  be  subject  to  the  estate  aforesaid,  as 
witness  my  hand  and  seal,  23d  December,  1853. 

ANNA  R.  STOKES,  [l.  s.] 

Hodges   paid  Clinkscales,  and  claims  under  the  mortgage. 


APPEALS  IN  EaUITY.  141 

Columbia,  November  and  December,  1559. 

The  commissioner  remarks,  in  his  report,  "Cochran,  and 
other  creditors,  whose  debts  arose  subsequent  to  the  date  of 
the  mortgage,  claim  that,  as  to  them,  the  mortgage  is  void 
for  want  of  notice.  Tiie  earUest  notice  proved  to  have  been 
received  by  Cochran,  was  December  23,  1853,  (evidenced  by 
his  drawing  np  Mrs.  Stokes'  endorsement  of  tiiat  date,  on  the 
paper.)  A  large  part  of  the  debts  paid  by  Cochran  was  for 
goods  purchased,  and  debts  contracted  by  the  firm  subse- 
quent to  the  date  of  the  mortgage;  and  between  the  death  of 
Stokes  (August  7,  1853)  and  the  time  of  the  notice  of  the 
mortgage,  (December  23,  1853,)  he  paid  out  debts  of  the 
firm  to  the  amount  of  $3,000  or  upwards.  I  have  not  the 
data  to  state  exactly  the  amounts  received  and  expended  by 
Cochran  during  that  time  on  account  of  the  firm,  but  am 
informed  that  the  expenditure  exceeded  the  receipts.  As  to 
Cochran  and  such  other  creditors,  whose  debts  were  con- 
tracted subsequent  to  the  date  of  the  mortgage,  and  who  had 
no  notice,  I  am  of  opinion  the  mortgage  cannot  avail.  This 
conclusion  I  have  attained  with  much  doubt" — 

And  it  is  to  this  ruling  of  the  commissioner,  the  2d,  3d, 
4th  and  5tli  exceptions  are  taken. 

At  the  hearing  I  was  strongly  disposed  to  support  them  ; 
and  I  have  striven  to  do  so;  but  I  cannot  find  grounds  of 
fact  or  law  to  sustain  me.  These  exceptions  are  therefore 
overruled. 

6.  The  sixth  of  these  exceptions  is,  "Because  the  commis- 
sioner has  erred  in  cliarging  Stokes  with  the  whole  amount 
(to  wit:  $4,300  81)  paid  him  by  Cochran  in  cash  and  cotton, 
to  be  applied  to  the  purposes  of  the  firm;  and  at  the  same 
time,  with  half  the  same  amounts,  by  adding  the  same  to  the 
reported  excess  of  payments  by  Cochran  over  his  receipts; 
thereby  making  the  final  indebtedness  of  Stokes  to  Cochran 
$4,112  17;  whereas  it  is  submitted  that  (assuming  the  cor- 
rectness of  the  data  upon  which  the  report  is  founded)  only 
the  sum  of  $4,112  17  —  2,150  41  (half  of  $4,300  SI)— 
$1,960  76  is  due." 


142  APPEALS  IN  EaUlTY. 

Stokes  vs.  Hodges. 

This  exception  is  founded  upon  a  misapprehension  of  the 
report,  as  will  be  seen  by  examining  it,  and  the  report  on  this 
exception. 

This  exception  is  overruled. 

7.  The  seventii  exception  was  abandoned.  It  was  in  these 
words:  "Because  the  commissioner  erred  in  deducting  the 
profits  (of  Cochran  &  Stokes)  to  wit :  $413  46,  from  the  doubt- 
ful and  bad  debts;  whereas  tliey  should  be  divided,  allowing 
the  estate  of  Stokes  one  half  thereof,  to  wit:  $206  73." 

8.  The  eighth  exception  is,  "  Because  the  proof  is  that 
Stokes  put  $2,500  into  the  firm  (the  money  borrowed  of  the 
bank)  and  the  commissioner  erred  in  not  adding  that  to  his 
payments,  as  he  did  the  payment  of  $4,300  81  to  him  by 
Cochran,  to  Cochran's  payments.  Both  sums  were  used  for, 
and  in  the  firm:  and  if  one  partner  gets  credit  for  his  pay- 
ment, the  other  should  also." 

9.  The  ninth  exception,  as  it  now  stands,  is  long  and  ob- 
scure. As  originally  filed,  it  was,  "Because  the  commissioner 
erred  in  allowing  more  to  J.  N.  Cochran  on  his  partnership 
claim  than  he  is  properly  entitled  to  receive;  especially  that 
he  has  erred  in  the  following  particulars:  That  he  has  given 
Cochran  the  whole  amount  of  $4,300  81,  said  to  have  been 
paid  into  the  firm  by  him — when  he  should  have  charged 
Stokes  with  only  one-half  of  that  sum — that  he  has  not 
charged  Cochran  with  interest  upon  the  amounts  and  notes 
received  by  him,  and  in  other  particulars  allowed  the  said 
James  N.  Cochran  more  than  he  ought  to  receive." 

This  was  the  form  of  the  7th,  Sth  and  9th  exceptions  as 
put  in  and  argued  before  the  commissioner.  On  these  he 
remarks  in  his  report  upon  exceptions:  "As  to  the  7th,  Sth 
and  9th  exceptions  it  can  only  be  said,  that  there  never  were 
any  profits  of  the  firm  to  divide.  There  was  an  excess  of 
sales  over  purchases,  but  when  the  bad  debts  were  taken  into 
consideration,  that  excess  was  completely  absorbed. 

"The  $2,500  applied  by  Stokes  to  the  firm's  debts— the 
proceeds  of  the  note  endorsed  by  Marshall  and  discounted  in 


APPEALS  IN  EaUITY.  14:i 

Columbia,  November  and  December,  1S59. 

bank — he  has  been  allowed  credit  for,  in  the  payments 
credited  to  him;  and  he  clearly  cannot  be  entitled  to  credit 
for  the  debts  paid  with  that  snm,  and  also  claim  credit 
for  so  much  cash  contributed  to  the  capital  of  the  concern. 
The  complainant's  exceptions  are  therefore  overruled." 

The  7th  exception  was  abandoned  at  the  hearing  before 
me;  and  if  it  had  not  been  abandoned,  I  would  have  over- 
ruled it  for  the  reason  given  by  the  commissioner. 

I  overrule  the  8th  exception,  for  the  reasons  given  by  the 
commissioner  for  his  judgment  upon  it. 

It  will  be  observed  that  the  commissioner  has  made  no 
observation  on  the  9th  excej)tion  as  presented  to  him;  I  have 
nevertheless  no  ditHculty  in  overruling  that  exception  as 
presented,  and  I  do  so. 

But  at  the  hearing,  by  consent  of  counsel,  the  exception 
was  amended,  by  adding  to  it:  "That  he  (the  commissioner) 
has  erred  in  allowing  Cochran  credit  for  $447  68,  as  a  pay- 
ment for  freight,  appearbii^  by  J.  F.  Hodges'  receipt,  which 
in  the  language  of  the  accountant,  Wm.  Hill,  to  whom  the 
books  of  the  firm,  by  agreement,  were  referred,  is  '  vague  and 
indefinite;'  and  also,  in  charging  the  estate  of  Stokes  with 
$484  98  as  a  part  of  the  proceeds  of  the  cotton  money  (the 
J.  C.  Cochran  draft)  alleged  to  have  gone  into  his  hands, 
more  than  appears  by  evidence  he  has  received;  and  further, 
in  charging  the  estate  of  Stokes  with  $1,300  81  as  proceeds 
of  the  cotton  money,  alleged  to  have  been  received  by  him, 
when,  by  the  showing  of  Cochran,  the  net  amount  of  said 
cotton  money  was  only  $1,249   34." 

This  part  of  that  exception  I  cannot  understand  without  a 
report  n|)on  it.     I,  therefore,  recommit  it  to  the  commissioner. 

Counsel  cannot  be  prevailed  on  to  go  into  references  early 
enough  to  allow  the  commissioner  time  for  a  full  and  delib- 
erate, statement  of  their  matters  before  him;  and  then  they 
hurry  both  him  and  the  Court  at  tlie  hearing.  The  commis- 
sioner might  procure  time,  by  assigning  early  days  for  lefer- 
ences;   and,  after  giving  notice  of  it,  if  counsel  and  parties 


144  APPEALS  IN  EaUITY. 


Stokes  vs.  Hodges. 


thwarted  him,  he  might  refuse  to  make  up  any  other  report, 
except  of  the  course  he  had  taken,  and  how  it  had  been 
frustrated.  This  course,  adopted  by  the  late  Mr.  Miller,  of 
Sumter,  proved  successful.  Nothing  short  of  it  is  likely  to 
succeed. 

10,  The  tenth  of  these  exceptions,  and  the  last  of  them,  is, 
"Because  the  commissioner  erred  in  not  allowing  a  reason- 
able compensation  to  J.  H.  Stokes  for  his  personal  attention 
to  the  business  of  the  firm,  from  its  commencement  to  his 
death.  It  is  insisted  that  his  services  rendered  in  this  behalf 
were  worth,  at  least,  $500  per  year.  He  gave  his  entire 
attention  to  the  firm,  and  boarded  himself  in  the  meantime." 

1  suppose  the  counsel  are  aware,  that  it  has  been  repeated- 
ly decided  that  compensation  for  such  services  must  depend 
on  the  partnership  agreement.  Parties  have  an  opportunity 
lo  agree  respecting  compensation,  if  they  choose  to  allow  it; 
and  if  they  make  no  bargain,  they  cannot  expect  the  Court 
to  make  a  bargain  for  them.  This  is  the  uniform  rule.  No 
decision  to  the  contrary;  and  the  counsel  must  be  supposed 
to  have  put  in  this  exception  with  the  mere  desire  to  impose 
the  labor  of  hearing  and  overruling  it.     It  is  overruled. 

In  closing  what  I  have  to  say  on  these  exceptions  I  would 
observe,  that  confusion  is  apt  to  arise  from  comprehending 
in  the  same  class  of  exceptions  divers  interests. 

I  am  now  to  consider  exceptions  put  in  by  "J.  N.  Coch- 
ran, on  behalf  of  himself  and  otliers,  creditors  of  J.  H. 
Stokes." 

1.  The  first  is:  "Because  G.  W.  Hodges  has  not  been 
charged  with  rent  of  the  partnership  plantation  for  the 
years  1854,1855,1856,  1857  and  1858,  to  wit:  the  sum  of 
$400,  annually,  with  interest." 

The  commissioner  remarks,  that  this  exception  "  proceeds 
as  your  commissioner  conceives,  from  the  confounding  of  a 
joint  tenancy  with  a  partnership  in  the  land.  The  purchase 
was  joint;  but  the  land  was  purchased  with  no  common 
fund.     The  partnership  appears  to  the  commissioner  to  have 


APPEALS  IN  EaUITY.  145 

Columbia,  November  and  December,  1859. 

consisted,  not  in  the  land,  but  in  the  farming  operations.  It 
is  trne,  real  estate,  under  our  statutes,  is  made  liable  for  the 
payment  of  debts  upon  the  deficiency  of  the  personalty;  for 
that  purpose,  the  creditors  had  a  right  to  call  upon  it  in  aid 
of  personalty.  But  is  the  right  to  rent  from  a  co-tenant  inci- 
dent to  this  right  of  creditors? 

"Under  our  statutes,  upon  the  death  of  a  joint  tenant,  his 
interest  descends,  as  in  tenancy  in  common,  and  becomes 
liable  to  distribution  among  heirs  and  distributees;  subject, 
of  course,  to  the  rights  of  creditors.  The  jus  accrescendi  is 
taken  away,  and  the  right  of  partition  accrues." 

There  is  no  doubt  that  the  jus  accrescendi  being  abolished 
by  statute  as  to  lands  held  in  joint  tenancy,  (which  I  regard 
this  land  to  have  been,)  the  necessary  consequence  is,  that 
the  portion  of  the  deceased  owner  descends  for  distribution, 
in  the  absence  of  a  will. 

The  operations  on  these  lands  for  the  years  indicated,  after 
Stokes'  death,  were  not  conducted  in  privity  with  him,  but 
with  his  widow,  as  an  individual,  acting  for  herself  and  her 
infant  co-distributees. 

If  Hodges'  use  of  the  premises  exceeded  his  share,  which 
I  do  not  see,  and  was  contrary  to  their  interests,  for  this 
abuse,  he  was  primarily  accountable  t(»  them.  Though  the 
widow  was  administratrix,  yet  as  administratrix  she  had 
nothing  to  do  with  the  land,  so  as  to  establish  a  privity  in 
this  matter  with  creditors.  The  land  was  liable  for  debts, 
and  is  so  still.  This  liability  is  created  by  statute,  and  the 
statute  creating  it  is,  perhaps,  the  measure  of  the  liability. 

Where  is  the  right  to  rent  given  ?  Besides,  there  is 
nothing  in  these  pleadings  to  raise  the  point.  Must  not  the 
creditors  resort  to  a  bill  for  the  purpose  of  claiming  this 
liability? 

If  the  widow  and  children  are  liable  to  creditors  for  their 
occupancy — which  I  doubt,  until   it  is  demanded  by  bill — 
that  is  not  what  this  exception  claims.    Their  ancestor's  por- 
tion of  the  land  descended  upon  them;  and  in  occupying  it 
11 


146  APPEALS  IN  EaUITY. 

Stokes  vs.  Hodges. 

they  occupied  not  rented  premises,  but  land  legally  their  own. 
It  would  be  startling  to  announce  to  persons  in  this  condition, 
which  is  a  very  common  case,  that  while  occupying  their 
own  land,  as  to  which  their  ancestor  was  not  chargeable  with 
rent,  and  of  whose  insolvency,  if  that  made  any  difference, 
they  might  be  utterly  unconscious,  they  were  all  the  time 
accumulating  rent  upon  themselves.  The  exception  is  over- 
ruled, 

2.  The  second  exception  is,  "  Because  if  G.  W.  Hodges  is 
not  chargeable  with  the  partnership  premises  for  the  years 
1854,  '55,  '56,  '57,  '58,  the  estate  of  Anna  R.  Stokes,  adminis- 
tratrix of  J.  H.  Stokes,  is  chargeable  with  the  same,  with 
interest." 

The  commissioner  remarks,  "As  to  creditors'  second  ex- 
ception, the  claim  of  Anna  R.  Stokes  does  not  seem  to  come 
within  the  scope  of  the  bill,"  [nor  any  part  of  the  record.] 

"  Her  authority  as  administratrix  extended  to  the  person- 
alty only;  and  her  possession  and  enjoyment  of  the  land  was, 
in  virtue  of  the  descent,  cast  upon  her  by  operation  of  law. 
The  said  land  was  usel  for  the  support  and  maintenance  of 
the  family,  and  I  do  not  think  the  claim  for  rent  shoul(i 
prevail." 

I  concur  with  these  observations,  and  overrule  the  excep- 
tions. 

3.  The  third  exception  is,  "  Because  the  commissioner 
should  have  allowed  interest  to  J.  N.  Cochran  on  the  amount 
of  his  capital,  $4,300  81,  from  the  time  of  its  investment; 
and  also,  interest  for  payments  made  for  the  firm  from  the 
time  of  such  payments." 

The  claim  for  interest  upon  a  partner's  stock  paid  in,  in 
the  absence  of  a  stipulation  for  it  in  the  articles,  is,  I  believe, 
unprecedented.  The  capital  is  risked  for  profits,  which  are 
the  substitute  for  interest  on  the  money.  The  claim  of  inter- 
est upon  the  payments  made  by  Cochran,  so  far  as  made  out 
of  his  own  funds,  is,  I  think,  right,  upon  principle.  He 
stands,  in  such  case,  as  a  creditor  of  the  firm.     If,  therefore, 


APPEALS  IN  EaUITY.  M7 

Columbia,  November  and  December,  1859. 

the  account  allows  interest  to  Stokes  for  his  payments,  it 
should  be  allowed  to  Cochran.  Both  parties  should  be 
allowed  interest. 

4.  The  fourth  exccjition  is.  that  "J.  N.  Cochran,  m  addi- 
tioji  to  half  the  losses  of  the  firm,  should  be  allowed  to  go 
against  the  estate  of  his  partner,  J.  H.  Stokes,  with  the  full 
amount  of  said  J.  H.  Stokes'  individual  indebtedness  to  the 
firm,  viz:  $529  75  and  $27  23." 

The  commissioner  has  sustained  this  exception,  and  I  con- 
cur with  him  in  the  principle,  that  each  member  of  a  firm  is 
liable  to  it  for  the  full  amount  of  his  contracts,  as  an  individ- 
ual, with  it.  There  is  danger,  however,  of  sustaining  every 
part  of  an  exception  so  sweeping  as  this.  It  was  unneces- 
sary to  the  exception  to  state  the  amount  of  Stokes'  debts  to 
the  firm,  or  to  claim  that  he  should  be  charged  with  il,  in 
addition  to  half  the  losses.  I  refrain  from  sustaining  the 
exception  as  to  these  particulars,  though  they  may  be  right. 
One  cannot  be  too  vigilant. 

5.  The  fifth  exception  is,  "  Because  the  commissioner 
has  not  charged  J.  H.  Stokes'  estate  with  §S09  50,  the 
amount  of  partnership  money  applied  to  his  private  debts." 

The  commissioner,  in  his  report,  sjicaking  of  this  claim, 
says:  "  I  have  not  allowed  it,  as  it  appears  that  he  has  been 
charged  with  the  full  amounts  received  by  him,  and  after 
allowing  the  proper  credits,  a  balance  remains  in  his  hands 
of  only  §27  23." 

This  appears  to  be  satisfactory.  If  Stokes  was  already 
charged  with  all  he  received  from  the  firm,  this  $809  50  is 
acounted  for,  and  should  not  be  charged  again.  The  excep- 
tion is  overruled. 

6.  The  sixth  exception  is,  "Because  the  commissioner 
improperly  held  the  paper  dated  the  2d  of  March,  1853,  to 
be  a  valid' and  subsisting  mortgage  of  certain  slaves  to  G.  W. 
Hodges  and  others,  to  indemnify  them  as  sureties  of  J.  II. 
Stokes,  on  the  Clinkscales  note  of  $2,500,  dated  May  3d, 
1852." 


J48  APPEALS  IN  EaUITY. 


Stokes  vs.  Hodges. 


The  commissioner  overruled  tliis  exception.  1  cannot  con- 
cur with  him,  though  I  differ  from  his  judgment  with  hesita- 
tion. I  am  of  opinion  the  mortgage  which  was  created  to 
secure  another  and  prior  note  cannot  be  connected  with  tliis, 
which  had  no  existence  till  two  months  afterwards. 

The  want  of  registration  is  also  fatal  to  the  mortgage. 
Notice  of  it  in  December,  1853,  was  notice  of  its  defects. 
And  payments  made  after  that  time,  by  Cochran,  to  which 
he  was  obliged  by  anterior  contracts  of  the  firm,  or  of  him- 
self on  behalf  of  the  firm,  should  be  referred  to  the  anterior 
obligations,  and  not  considered  voluntary  contracts  or  pay- 
ments after  notice.  This  view  is  different  from  that  I  strong- 
ly expressed  at  the  hearing;  but  I  must  be  at  liberty  to 
correct  a  hasty  judgment. 

It  was  argued  that  the  mortgage  should  prevail  as  to  cred- 
itors who  became  such  after  notice,  such  as  Cochran  obtained 
in  December,  1853,  when  he  drew  Mrs.  Stokes'  endorsement 
on  the  mortgage.  As  to  Cochran,  the  only  creditor  affected 
by  such  notice,  I  have  stated  that  his  payments  after  that 
time  should  be  referred  back  to  the  date  of  the  contracts, 
which  compelled  him  to  make  them.  But  1  have  now  to 
observe,  that  the  mortgage  being  incapable  of  being  con- 
nected with  the  note  to  Clinkscales,  the  only  debt  claimed 
under  it,  is  no  mortgage;  and  all  the  notice  in  the  world 
could  not  make  it  one,  as  against  persons  having  such  notice, 
more  than  against  other  persons  who  had  no  notice  at  all. 

It  has  been  said  also,  that  this  money  being  borrowed  to 
replace  money  borrowed  from  the  bank  to  pay  debts,  was 
gotten  for  partnership  purposes;  and  so  Cochran  being  a 
partner  was  chargeable  with  notice.  But  in  this  matter,  the 
claim  being  through  and  in  behalf  of  Stokes,  the  parties  were 
acting  apart,  and  at  arms'  length ;  and  the  maxim  relied  on 
cannot  rightfully  apply.  Stokes  had  credit  for  his  payments 
made  with  the  $2,500  borrowed,  and  still  remains  a  debtor 
to  the  firm;  which  precludes  the  idea  of  subrogating  Hodges 
to  his  rights  under  the  payments  made  by  him. 


APPEALS  IN  EaUlTY.  149 

Columbia,  November  and  December,  1859. 

I,  therefore,  sustain  this  exception, 

7.  The  seventh  exception  is,  "  that  the  commissioner  has 
improperly  held  the  $1,180  92,  paid  by  Hodges  on  bond  to 
the  estate  of  Mrs.  Mays,  to  rank  as  a  specialty  debt ;  said 
band  having  been  given  jointly  by  Stokes  &  Hodges  for  the 
purchase  money  of  the  partnership  plantation." 

The  bond  was  not  produced;  but  I  understand  it  to  be 
admitted  that  it  was  joint,  and  not  joint  and  several. 

The  cases  of  Pride  vs.  Boijce,  Rice  Eq.,  2S6,  and  Kins;  vs. 
Aiightry,  3  Strob.  Eq.,  156,  in  which  it  was  held,  that  such  a 
bond  might  be  reformed  into  a  joint  and  several  obligation, 
on  the  ground  of  presumed  mistake,  and  set  up  as  such 
against  an  estate,  were  cases  of  sureties  applying  to  have  an 
equity  enforced  against  their  principal.  This  is  the  case 
where  the  applicant  was  himself  debtor  along  with  him 
whose  estate  he  seeks  to  affect,  and  equally  bound  with  him 
to  pay  the  debt. 

But  I  think  the  true  principle  of  these  cases  is,  that  wher- 
ever a  party  is  exposed  to  pay  a  sum  of  money,  which  (as 
between  iiimself  and  his  co-obligor)  the  co-obligor  is  bound, 
in  equity,  to  pay,  he  is  entitled  to  a  remedy  either  by  reform- 
ing the  contract,  or  otherwise,  if  practicable,  to  throw  the 
burden  of  payment  on  him. 

For  his  own  half  of  the  bond,  Hodges,  on  this  principle, 
is  entitled  to  no  remedy.  But  for  the  other  half,  Stokes  was 
equitably  exclusively  bound  as  between  himself  and  Hodges; 
and  Hodges  wa"*,  as  between  the  two,  only  his  surety;  and 
having  paid  off  the  bond  to  the  extont  it  was  left  unpaid  by 
the  proceeds  of  re-sale,  I  am  of  the  opinion  he  is  entill^d  to 
set  up  the  bond  to  the  extent  of  his  payments  for  Stokes, 
(making  proper  calculations,)  against  the  estate  of  Stokes. 
And  in  this  view,  I  overrule  the  exception. 

8.  The  eighth  exception  is  intended  to  apply  this  ruling, 
to  some  extent,  to  the  other  side.  It  is,  that".!.  N.  Coch- 
ran, having  paid  the  debts  of  the  partnership  (of  Cochran 
&  Stokes)    to  the  amount  of  .^3,224  .34,  as  appears  by  the 


150  APPEALS  IN  EaUITY. 

Stokes  vs.  Hodges. 

account,  siiould  be  subrogated  to  all  the  rights  of  partnership 
creditors,  and  allowed  with  the  whole  partnership  debt  paid 
by  him,  to  share  h\s pro  rata  with  the  other  private  creditors 
out  of  the  private  estate  of  J.  H.  Stokes." 

To  the  extent  of  the  excess  of  his  payments  out  of  his 
own  funds,  beyond  his  half,  ('ochran  is  a  creditor  of  Stokes, 
like  anv  other  of  his  creditors.  The  payment,  per  se,  made 
him  only  a  simple  contract  creditor.  But,  occupying  essen- 
tially the  position  of  Stokes'  surety,  as  to  the  amount  which 
Stokes  should  in  equity  have  paid,  and  which  he  has  been 
obliged  to  pay  out  of  his  own  funds,  he  is,  in  my  opinion 
(entertained  with  hesitation,)  entitled,  as  far  as  he  has  paid 
specialty  debts,  if  any,  to  rely  upon  them  to  place  himself,  as 
creditor,  in  a  higher  rank  among  Stokes'  creditors,  limiting 
that  privilege,  however,  to  t!ie  extent  which  his  payments 
have  made  him  a  creditor  of  Stokes.  He  has  no  right  to 
come  in  for  the  whole  amount  he  has  paid,  but  only  for  half 
his  excess  of  payments;  thus  leaving  himself  to  sustain  one- 
half  the  losses  of  the  firm. 

In  this  view,  and  to  this  extent,  the  exception  is  sustained. 

9.  The  ninth  exception  is,  "Because  G.  W.  Hodges  has 
not  been  charged  with  the  value  of  the  cotton  seed  of  the 
crop  of  1853  (to  wit:  about  1,200  bushels,)  and  also  for  cattle 
and  other  property  belonging  to  the  partnership  of  Hodges  & 
Stokes,  and  also  interest  upon  the  value  of  the  same." 

The  commissioner  says:  "The  ninth  exception  is  over- 
ruled. The  testimony  of  W.  N.  Munday  and  Wm.  S.  Smith 
proves  that  the  appraisers  intended  to  divide  the  partnership 
property  equally  between  Hodges  and  the  estate  of  Stokes ; 
and  though  neither  cotton  seed  nor  cows  appear  in  the  sale 
bill  of  said  estate,  it  is  probable  their  value  was  compensated 
in  some  other  way." 

I  shall  not  undertake  to  say  the  commissioner  is  not  right. 
I  overrule  the  exception. 

10.  The   tenth   exception  does   not  appear  to   have  been 


APPEALS  IN  EaUITY.  151 

Columbia,  November  and  Deceniber,  1859. 

before  the  commissioner.  It  is,  therefore,  recommitted,  with 
the  report,  to  him. 

11.  The  eleventh  exception  is,  "  Because  the  commissioner 
has  aUogether  overlooked  the  individual  demand  of  J.  N. 
Cochran  against  the  estate  of  J.  H.  Stokes,  viz:  to  the  amount 
of  $150,  and  interest  thereon  ;  all  of  which  were  proved." 

It  is  admitted  these  demands  were  overlooked.  Therefore 
let  them  be  recommitted,  and  let  the  report  be  remanded  to 
the  commissioner. 

The  defendant,  Cochran,  appealed  on  the  grounds: 

1.  It  is  respectfully  submitted  that  the  Medy  Mays  tract  of 
land  was  partnership  property,  and  so  treated  by  the  partners. 
And  whether  it  lie  regarded  as  partnership  property  or  a  joint 
tenancy,  it  is  insisted  that  G.  W.  Hodges,  having  the  posses- 
sion and  cultivation  of  it,  is  bound  to  account  for  the  rent  of 
the  premises,  and  interest  thereon,  from  the  death  of  J.  H. 
Stokes  till  the  sale  of  the  land. 

2.  In  the  event  that  G.  W.  Hodges  is  not  bound  to  account 
for  the  rent  of  the  premises,  it  is  respectfully  submitted  that 
Anna  R.  Stokes,  administratrix,  or  her  representative,  is 
bound  to  account  for  the  same  and  interest. 

3.  Because  according  to  the  partnership  articles  each  part- 
ner being  bound  to  advance  an  equal  amount  of  capital,  and 
.).  H.  Stokes  failing  to  advance  any  ;  it  is  respcctlnlly  sub- 
mitted that  the  Chancellor  erred  in  refusing  to  allow  J.  N. 
Cochran  interest  on  his  capital,  $4,300  81,  from  the  time  of 
its  investment. 

4.  Because  J.  N.  Cochran,  as  against  the  estate  of  his 
partner,  J.  H.  Stokes,  should  have  been  allowed  the  whole 
amount  of  his  capital,  §4,300  81,  and  interest  thereon,  and 
as  to  the  amount  of  the  partnership  debt  paid  by  him, 
($3,923  53,)  should  be  su])rogated  to  all  the  rights  of  part- 
nership creditors,  and  allowed  with  the  sum  of  his  capital 
($4,300  81)  and  interest,  the  partnership  debt  paid  by  him 
($3,923  53)  and  interest,  and  the  individual  indebtedness  of 


152  APPEALS  IN  EQUITY. 

Stokes  vs.  Hodges. 

Stokes  to  the  firm  ($556  9S)  to  share  his  pro  rata  with  other 
private  creditors  out  of  the  private  estate  of  J.  H.  Stokes. 

The  defendant,  Hodges,  appealed  upon  the  grounds  : 

1.  The  mortgage  or  assignment  to  George  W.  Hodges  and 
others,  should  have  been  held  valid,  and  allowed  a  specific 
lien  upon  the  negroes  Cato,  Julia,  Charity  and  Easter,  because 
the  proof  was  clear  that  the  parties  substituted  for  tlie  Dorn 
note,  the  note  to  Clinkscales,  and  intended  the  mortgage  to 
secure  the  "  borrowed  money"  covered  by  this  latter  note. 

2.  Assuming  the  validity  of  the  mortgage,  it  is  submitted 
that  James  N.  Cochran  is  not  a  subsequent  creditor  without 
notice,  or  entitled  to  take  advantage  of  the  want  of  registry 
of  the  said  paper. 

JK^oble,  Wilson,  for  Cochran. 

McGowan,  Jones,  for  Hodges. 

The  opinion  of  the  Court  was  delivered  by 
Johnston,  Ch.     The  grounds  of  apj)eal  in  this  case,  which 
it  is  deemed  necessary  to  notice,  relate  : 

1.  To  the  mortgage  given  by  Stokes  to  indemnify  his  sure- 
ties for  money  borrowed. 

2.  To  the  non-allowance  of  interest  to  Cochran  on  his  capi- 
tal put  in. 

3.  To  the  advantages  decreed  to  George  W.  Hodges,  in 
respect  to  payments  made  by  him  beyond  his  share  for  the 
land  bought  by  himself  and  Stokes  from  the  commissioner; 
and 

4.  To  the  refusal  to  make  Hodges  account  for  the  rent  of 
this  land  after  Stokes'  death. 

I.  As  to  the  mortgage.  There  would  be  much  difficulty  in 
relation  to  this  instrument,  if  it  had  been  made  to  appear 
that  it  had  been  put  into  operation.  Among  other  matters  of 
difficulty,  would  be  the  determination  of  its  effect  upon  credit- 
ors, under  the  circumstances  stated  in  the  case.     Was  Coch- 


APPEALS  IN  EaUITY.  153 

Columbia,  November  and  December,  1859. 

ran  a  subsequent  creditor  anterior  to  the  notice  which  he 
appears  to  have  obtained  on  the  5th  of  December?  and  many 
other  points.  But  all  these  inquiries  are  superseded  by  the 
opinion  entertained  by  this  Court,  to  wit:  that  the  instrument 
was  never  delivered,  and  never  went  into  operation. 

No  conclusion  in  favor  of  delivery  should  be  drawn  from 
the  fact,  that  in  the  attestation  it  purports  to  have  been 
"  signed,  sealed  aiul  delivered."  It  was  in  that  condition 
when  shewn  by  Stokes  to  Zeigler;  and  it  is  certain  that 
at  that  time  it  had  not  issued  from  the  hands  of  Stokes.  It 
still  remained  with  him  when  he  procured  the  accommo- 
dation of  Marshall.  Nor  would  it  seem  to  have  been  deliv- 
ered at  the  time  the  money  was  borrowed  from  Clinkscales  ; 
with  whom  a  note  was  left  "as  collateral  security,"  until 
another  note  could  be  procured  and  substituted. 

Had  the  mortgage  been  registered,  that  circumstance  might 
have  been  insisted  on  as  evidence  of  delivery.  But  secret, 
unregistered  conveyances  or  liens  are  not  to  be  favored,  unless 
there  is  reasonable  proof  that,  during  the  time  they  remained 
out  of  the  range  of  public  observation,  everything  that  pur- 
ports to  have  been  done  was  actually  and  bona  fide  done. 
There  is  no  proof  that  either  of  the  mortgagees  was  ever  in 
the  possession  of  the  instrument  during  Stokes'  life.  The 
last  evidence  we  have  of  it  leaves  it  in  Stokes'  possession  : 
and  we  are  to  infer  that  it  remained  in  liis  hands  at  his 
death,  unless  the  subsequent  production  of  it  by  George  W. 
Hodges  is  proof,  that  he  acquired  possession  by  the  hands 
of  Stokes.  But  when  we  consider  his  intimate  connection 
with  the  administration  of  Stokes'  estate,  whose  administra- 
trix was  his  own  daughter,  for  whom  he  acted  as  ]irincipal 
agent,  we  hesitate  to  admit  that  his  possession  must  have 
been  acquired  from  the  intestate.  We  disclaim  all  disparag- 
ing imputation  whatever,  but  we  think  it  would  be  unsafe  to 
presume  a  delivery  under  the  circumstances, 

2.  The  next  point  relates  to  the  interest  claimed  on  the 
capital   put  in   by  Cochran.      The  exception  was,  that  the 


154  APPEALS  IN  EaUITY. 

Stokes  vs.  Hodges. 

commissioner,  in  his  report,  had  not  allowed  this  interest. 
Tiie  Court  must  confine  itself  to  the  exceptions  put  in  ;  and 
it  expects  that  they  shall  be  such  as  to  point  out  the  specific 
errors  complained  of.  The  argument  here,  is,  not  so  much, 
that  interest  should  be  allowed  to  Cochran  on  his  advance  of 
capital,  as  that  Stokes,  the  other  party,  should  have  been 
charged  for  capital  which  he  failed  to  put  in — with  interest  on 
what  he  withheld.  That  might  have  been  a  proper  exception 
to  the  report ;  but  it  was  not  taken  ;  and  it  would  have  been 
extraordinary  if  the  Court  had  substituted  and  sustained  an 
exception  omitted,  in  place  of  the  one  put  in,  as  the  basis  fin- 
its  judgment. 

On  the  exception  actually  put  in,  this  Court  is  of  opinion 
the  Cliancellor's  decision  was  correct.  As  between  partners  the 
object  of  putting  in  capital  is  profits  and  not  interest.  The 
profits  are  the  substitute  of  interest;  and  without  some  stipu- 
lation in  the  articles,  each  partner  is  only  entitled  to  have  his 
capital  back.  This  is  the  drift  of  the  case  of  Cameron  vs. 
fFalson,  10  Rich.  Eq.,  64. 

It  is  not  intended  to  say  that  in  the  account  Stokes  is  not 
chargeable  with  the  amount  of  capital  he  failed  to  put  in. 
But,  as  I  have  said,  that  is  a  very  different  thing  from  sus- 
taining the  claim  now  advanced. 

3.  This  Court  approves  the  ruling  of  the  Chancellor,  in 
respect  to  the  amount  paid  by  Hodges  beyond  his  own  half 
of  the  bond  ;   and  the  point  requires  no  further  observation. 

4.  The  fourth  point  relates  to  the  rent  claimed  from  Hod- 
ges for  liis  occupation  after  Stokes'  death. 

There  has  been  an  accounting  as  to  all  other  matters 
beyond  tliis  rent.  It  is  not  necessary  to  inquire  whether 
there  may  or  may  not  be  a  partnership  in  land.  We  are  of 
opinion  there  was  no  partnershij)  in  this  land.  The  parties 
were,  by  the  conveyance  to  them,  joint  tenants.  The  land 
was  the  mere  basis  of  operations,  in  which  operations  slaves 
and  live  slock  were  contributed  for  the  purposes  of  common 


APPEALS  IN  EaUITY.  155 

Columbia,  November  and  December,  1S59. 

profits  or  losses.  As  to  these  contributions  there  was  a  [)art- 
nership;  of  which  the  accounts  have  been  taken. 

But  I  am  instructed,  by  the  Court  to  announce  its  opinion 
that  an  account  should  have  been  taken,  charging  Hodges, 
not  for  7'ent,  eo  ?w?ni/ie,  but  in  respect  to  his  occupation 
beyond  his  just  projiortion  of  the  land. 

The  bill  is  to  call  in  creditors  of  the  estate  of  Stokes,  and 
to  apportion  its  assets  among  them.  Hodges  has  come  in 
and  has  preferred  his  demands  as  such  creditor,  and  they 
have  been  established.  But  I  am  instructed  to  say  that  these 
should  not  have  been  allowed,  without  deducting  from  them 
what  he  owes  for  undue  occupation  of  these  premises.  It  is 
conceived  that  this  would  not  be  just  to  the  other  creditors. 
Therefore  the  direction  of  this  Court  is,  that  for  any  occupa- 
tion by  Hodges,  exceeding  the  share  to  which  he  was  entitled 
(to  wit:  beyond  half  the  premises)  he  should  be  charged  with 
reasonable  compensation,  to  be  deducted  from  the  amount 
allowed  him  on  his  demands  against  the  estate  of  Stokes. 

Let  the  decree  be  modified  according  to  this  opinion  ;  and 
in  all  other  respects  affirmed. 

DuNKiN  AND  Wardlaw,  CC,  coucurred. 
Decree  modified. 


156  APPEALS  IN  EaUlTY. 


American  Bible  Society  vs.  Noble. 


American  Bible  Society  and  others  vs.  William  P.  Noble 

AND    OTHERS. 

Wills  and  Testaments — Devise  to  Corporations. 

Testator,  being  the  owner  of  two  large  estates,  each  embracing  real  and  per- 
sonal property,  made  disposition  of  the  greater  part  of  one  estate  in  the  first 
part  of  his  will,  and  in  a  subsequent  part,  relating  to  the  "disposal"  of  the 
other  estate,  directed  his  executors  to  sell  "the  whole  estate,"  and  then  pro- 
ceeded to  dispose  of  the  proceeds  of  the  sale:  Held,  that  the  direction  to  sell 
related  only  to  the  estate  mentioned  in  that  part  of  the  will,  and  did  not  em- 
brace some  portions  of  the  other  estate,  which  the  will  did  not  dispose  of 

Where  a  testator  owned  a  large  real  and  personal  estate,  which  he  had  inher- 
ited from  a  deceased  brother,  and  to  which  he  had  added  a  large  tract  of  land, 
purchased  with  the  proceeds  of  the  crops  of  that  estate,  held,  that  his  devise 
"of  the  estate  of  my  respected  and  greatly  lamented  brother,"  embraced  as 
well  the  estate  he  had  inherited  as  the  land  he  had  purchased. 

A  bequest  of  a  negro  woman  "and  her  descendants,"  will  include  all  her  issue 
born  before  or  after  the  date  of  the  will ;  so,  also,  a  bequest  of  a  negro  woman 
"  and  her  children,"  will  include  all  the  children;  but  a  bequest  of  a  negro 
woman  simply,  by  name,  will  not  include  her  children  born  before  the  death 
of  the  testator. 

Testator  directed  a  sum  of  money  to  be  placed  at  interest  in  a  bank,  "which 
sum,  when  thus  placed,  I  do  hereby  cheerfully  give  to  J.  M.  And  do  hereby 
so  settle  it,  that  no  person  or  persons  whatever,  under  any  circumstances  or 
pretext  whatever,  can  deprive  him  of  it  during  his  natural  life.  That  J.  M., 
himself,  shall  not  be  allowed  to  touch,  or  use,  or  squander  one  cent  of  the 
principal:  but  only  to  draw  and  make  use  of  the  lawful  interest  annually,  as 
may  seem  to  him  best."  Held,  that  J.  M.  took  an  absolute  interest  in  the 
money,  with  right  to  dispose  of  it  as  he  pleased. 

Where  there  is  no  charge  of  insolvency  or  misconduct  against  an  executor,  the 
Court  will  not  deprive  him  of  the  privilege,  which  the  will  gives  him,  of  sell- 
ing lands,  and  direct  the  sale  to  be  made  by  the  commissioner. 

A  devise  of  lands,  to  be  sold  by  the  executors,  with  directions  to  distribute  the 
proceeds  among  certain  religious  corporations,  is  a  devise  of  personalty,  and 
is  not  prohibited  by  the  Act  of  1733,  (3  Stat.,  341,)  excepting  corporations 
from  the  objects  of  the  devises  of  land. 

BEFORE  JOHNSTON,  CH.,  AT  ABBEVILLE,  JUNE,  1859. 

The  facts  of  this  case  are  stated  in  the  report  of  his  Honor, 
the  presiding  Chancellor,  as  follows  : 

In  order  to  fully  explain  the  situation  of  this  case,  it  may 


APPEALS  IN  EaUITY.  157 

Columbia,  November  and  December,  1859. 

be  proper  to  look  into  circumstances  which  preceded  the 
filing  of  this  hill. 

John  B.  Bull,  of  Abbeville,  died  the  6th  of  January,  1855, 
leaving  neither  father,  mother  or  lineal  descendant,  but  leav- 
ing a  widow,  who  was  an  alien,  and  three  first  cousins.  He 
was  supposed  to  have  died  intestate,  and  a  bill  was  filed  in 
1855,  by  the  cousins,  against  the  widow  and  the  administra- 
tors, of  whom  she  was  one,  for  partition  of  the  estate.  A 
qviestion  was  raised  at  tlie  hearing,  which  took  place  in  June, 
1S55,  whether  the  widow,  under  the  Statute  of  1828,  was 
entitled  to  a  part  of  the  real  estate.  It  was  decided  against 
the  widow;  from  which  decision  an  appeal  was  taken,  and 
resulted  in  affirming  the  decree  at  Columbia,  December, 
1855. 

As  respected  the  personalty,  the  order  of  the  Court  was, 
that  the  bill  stand  until  the  expiration  of  nine  months  from 
the  death  of  the  intestate,  and  that  then  a  writ  issue  for  the 
partition  of  it,  and  that  the  commissioner  inquire  into  and 
report  upon  the  matters  of  account.  At  the  expiration  of  the 
time  fixed,  a  writ  of  partition  issued  ;  and  on  the  20th  of 
November,  1855,  the  commissioners  in  partition  having  made 
their  return,  it  was  ordered  that,  after  advertising  for  at  least 
twenty- one  days,  the  commissioner  sell  the  slaves  at  Abbe- 
ville Court  House,  on  the  20th  and  2 1st  of  December  follow- 
ing, or  some  convenient  day  or  days  thereafter,  at  public 
outcry. 

On  the  17th  of  December,  three  days  before  the  intended 
sale,  the  following  order  was  passed,  which  explains  itself: 

",^7idrew  W.  Burnett,  and  next  of  kin,  vs.  William  P.  Noble, 
administrator,  et  al. 

It  appearing,  since  the  writ  of  partition  [was]  issued  in 
this  case,  and  the  order  [was]  made  for  the  sale  of  the  slaves 
for  partition  among  the  parties  interested,  that  a  paper  (which 
has  been  exhibited  to  mc,)  purporting  to  be  the  last  will  and 
testament  of  John  B.  Bull,  deceased,  has  been   discovered. 


158  APPEALS  IN  EQUITY. 

American  Bible  Society  vs.  Noble. 

which  materially  changes  the  disposition  of  the  slaves  and 
[other]  property.  On  motion  of  Thomson  and  Fair,  for  Mrs. 
Sarah  Bull,  Ordered,  That  the  order  for  sale  heretofore  made 
and  directed  to  tlie  commissioner  of  this  Court,  be  rescinded; 
and  that  he  do  not  sell,  as  ordered,  until  the  further  order  of 
this  Court. 

J.  JOHNSTON. 
December  17,  1855." 

The  next  order  in  that  case  was  passed  by  myself,  on  the 
I7th  of  January,  1856,  and  I  have  special  reasons  of  my  own 
for  wishing  it  set  out  in  full,  not  that  it  is  very  necessary  to 
do  so  for  the  purposes  of  the  present  case,  but  I  prefer  that  it 
should  speak  for  itself,  as  it  will  serve  to  correct  what  it  has 
been  represented  to  contain. 

''^Jiiidrew  IV.  Burnett,  et  al,  vs.  TVilUarn  P.  Noble,  et  ul. 

This  morning,  Mr.  Rhett  appeared  before  me,  at  cham- 
bers, during  the  Appeal  Term  at  Charleston,  and  moved  a 
rescision  of  the  order  passed  by  me,  suspending  the  order, 
which  had  been  previously  made  by  myself,  for  the  sale  of 
the  slaves  of  the  estate  of  the  late  John  Bull. 

It  will  hardly  be  necessary  to  observe,  that  the  order  of 
sale  was  made  in  conformity  to  the  record  and  judgment  in 
this  case,  in  which  the  decedent,  Mr.  Bull,  was,  by  all  parties 
to  the  record,  stated  to  have  died  intestate;  and,  of  course, 
all  the  rights  of  the  parties  were  based  on  that  assumption. 

On  my  return  home  from  the  Court  of  Appeals,  [in 
Columbia,]  in  which  the  final  decree  was  made  upon  the 
only  question  carried  up  for  revision,  I  was  met  by  the  son 
of  Mrs.  Bull,  [by  a  former  marriage,]  who  informed  me  that 
a  wil'  of  the  decedent  had  just  been  discovered  by  himself, 
which  he  submitted  to  my  perusal.  The  day  of  sale  was 
nearly  at  hand,  and  no  time  was  to  be  lost.  But  I  directed 
him  to  go  to  Columbia,  and  submit  the  paper  to  Mr.  Thom- 
son, his  mother's  counsel,  and  also  to  the  Faculty  of  the 
Theological  Seminary,  which  had  an  interest  in  some  of  the 


APPEALS  IN  EaUITV.  15i> 

Columbia,  November  and  December,  1859. 

legacies  created  by  the  will;  and,  on  his  return  to  Abbeville, 
to  present  it  to  the  executor  named  in  it,  and  deposit  it  with 
the  ordinary.  He  returned  from  Columbia  as  speedily  as  he 
could,  with  a  motion,  drawn  up  liy  Mr.  Thomson,  for  the 
suspension  of  the  sale  until  further  order.  This  I  granted, 
and  the  time  of  the  sale  was  so  near,  that  there  was  hardly 
time  left  to  deposit  it,  and  reach  the  plantation,  so  as  to  stop 
the  negroes  from  being  brought  to  Abbeville.  Of  course,  I 
had  little  time  for  deliberation.  Besides,  I  may  mention 
the  peril  of  mistake  in  all  business  done  at  chambers.  But 
I  ventured  on  the  measure,  expecting  as  a  matter  of  course, 
that  if  the  suspension  produced  any  injury  to  any  party,  a 
motion  would  soon  be  made  to  rescind  the  order,  and  let  the 
sale  go  on.  The  suspension  was,  in  fact,  made  in  order  to 
give  time  to  the  parties  interested  in  the  will  to  propound  it, 
or  take  such  other  course  as  they  might  be  advised  to  pursue. 

Accordingly,  when  JNIr.  Rhett  mentioned  to  me  his  inten- 
tion to  move  before  me,  I  instructed  him  to  give  notice  to  the 
Rev.  Dr.  Adger  (interested,  as  I  understood,  as  one  of  the 
directors  of  the  Theological  Seminary,)  to  appear  with  coun- 
sel to  hear  the  motion,  and  oppose  it,  if  he  deemed  it  proper. 
At  the  making  of  the  motion,  Dr.  Adger  appeared  with 
counsel  (Messrs.  Simonton  &  McCrady)  on  the  one  side,  and 
Mr.  Rhett  on  the  otiier. 

"Mr.  Rhett  accordingly  moved  a  rescision  of  the  suspend- 
ing order,  and  that  the  sale  should  proceed,  and  stated  that 
he  wished  Tuesday,  the  12th  of  next  month,  to  be  fixed  as 
the  time  of  selling. 

"I  stated  that  I  was  willing  to  recall  the  suspending  order, 
and  to  order  that  the  sale  should  go  on,  but  that  the  order  to 
be  passed  for  that  purpose  could  not  reach  the  commissioner 
for  a  few  days;  that,  then,  time  should  be  given  for  the 
advertisement  of  so  large  a  body  of  slaves;  without  which  a 
sacrifice  might  ensue,  and  that  I  should  fix  upon  some  time 
near  the  1st  of  March.  This  length  of  time  I  thought  the 
interest  of  all  parties  required;    and  if  the  sale  were  prccip- 


100  APPEALS  IN  EaUITY. 

American  Bible  Society  vs.  Noble. 

itated,  the  sale  would  be  prejudiced.  I  liad  offered,  also,  to 
make  an  order  leaviug  the  time  of  sale  to  be  fixed  by  the 
commissioner. 

"Mr.  Rliett  immediately  withdrew  his  motion.  But  I  feel 
disposed  to  pass  the  order  of  my  own  motion.  It  ap])ears  to 
me  the  suspending  order  was  improvident,  calculated  to 
create  inconvenience  on  the  part  of  the  administrator.  He 
had  sold  off  the  provisions,  &c.,  preparatory  to  the  sale;  and 
the  preparation  to  retain  and  employ  the  negroes  must  be 
expensive,  especially  as  the  suspension  is  not  for  any  certain 
time,  but  until  further  order,  and  liable  to  be  terminated  at 
any  moment.  On  the  other  hand,  a  sale  now,  when  negroes 
are  selling  high,  will  rescue  the  property  from  the  casualty 
of  depreciation;  and  if  the  proceeds  be  impounded,  the  fund 
can  be  made  to  answer  to  all  parties,  whatever  shape  their 
interests  may  assume  under  the  will.  I  am  not  at  liberty  to 
decide  that  the  will  cannot  be  established,  and  I  should  take 
care  that,  if  it  can  be  established,  those  who  may  take  under 
it  shall  have  an  opportunity  to  protect  their  interests. 

"  It  is  ordered,  that  the  order  heretofore  made,  suspending 
the  sale,  be  rescinded;  and  that  the  commissioner, after  adver- 
tising the  property  for  a  length  of  time  satisfactory  to  himself, 
not  shorter  than  the  length  of  time  required  by  the  original 
order  of  sale,  be  at  liberty  to  sell  it  on  a  day  to  be  fixed  by 
himself,  upon  the  terms  set  forth  in  the  original  order  of  sale, 
and  that  he  retain  the  proceeds  of  sale,  and  the  securities 
taken  therefor,  subject  to  the  further  order  of  Court:  Pro- 
vided, always,  that  if,  in  the  judgment  of  the  commissioner, 
(after  enquiring  into  the  preparation  that  may  have  been 
made  for  retaining  and  employing  the  slaves,)  the  sale  hereby 
permitted  to  go  on,  will  be  prejudicial  to  the  interests  of  the 
estate,  he  may  omit  to  advertise  and  sell ;  and  in  that  case  he 
shall  report  the  facts  to  the  Court,  and  take  its  further  order. 

'*  It  is  ordered,  that  whatever  expenses  may  have  been,  or 
may  be  incurred,  in  consequence  of  the  suspension,  be 
chargeable  upon  the  estate.     It  is  further  ordered,  that  the 


APPEALS  IN  EaUITY.  161 

Columbia,  November  and  December,  1859. 

mmII,  if  not  already  deposited  in  the  ordinary's  office,  be 
deposited  with  the  commissioner,  nntil  further  order,  subject 
to  be  used  by  any  parly  desirous  to  ]iroj)ouiid  the  same  for 
probate;  and  that  thereupon  the  commissioner  give  notice  of 
its  contents,  and  of  this  order,  (this  clause  of  it,)  to  the  par- 
ties interested  under  it,  by  advertisement,  and  that  he  attend 
the  Ordinary's  Court  and  the  Law  Court,  with  the  will,  when 
proceedings  for  its  establishment  may  take  place,  and  he  is 
summoned. 

Charleston,  at  Chambers. 

J.  JOHNSTON. 
January  17,  1856." 

The  sale  proceeded,  and  the  proceeds  are  involved  in  the 
present  suit.  The  will  before  mentioned  was  propounded  in 
the  Ordinary's  Court,  and  was  required  to  be  proved  in 
solemn  form,  and  under  various  appeals  was  carried  before 
the  Court  of  Errors,  whore  it  was  adjudged  to  be  a  valid 
will ;  and  being  admitted  to  probate,  W^m.  P.  Noble  qualified 
as  sole  executor. 

This  will  is  the  sul)ject  of  construction  in  the  present  case ; 
and  as  I  desire  that  the  view  I  may  take  of  it  shall  be  open, 
in  the  fullest  manner,  to  correction,  I  prefer  that  it  be  read  at 
length.  The  original,  which  is  an  autograph,  is  in  the  fol- 
lowing terms  : 

"  In  the  name  of  our  Lord  and  Saviour,  Jesus  Christ,  the 
friend  of  sinners:  in  the  name  of  God  the  Father,  Son,  and 
Holy  Si)irit,  Amen — I  John  B.  Bull,  of  the  State  of  South 
Carolina  and  District  of  Abbeville:  considering  the  shortness 
and  extreme  uncertainty  of  this  present  mortal  life,  and  the 
certainty  of  death  :  do  hereby  make  lliis,  my  last  will  and 
testament,  being  the  first  and  only  one  which  I  have  made, 
bearing  date  this  8th  day  of  April  A  D.  1843,  and  now  I  by 
this  my  writing,  cheerfully  will,  that  alter  my  decease,  mv 
physician's  account  shall  be  paid  by  my  executors  hereinafter 
named.  Also  my  funeral  expenses. 
12 


162  APPEALS  IN  EaUITY. 

American  Bible  Society  vs.  Noble. 

"Item  1st.  I  do  hereby  cheerfully  give  and  bequeath  unto 
my  dearly  heloved  and  lionored  wife,  Mrs.  Sarah  Bull,  in  con- 
sideraiion  of  her  untiring,  gentle,  ciiristian,  dutiful  attention 
to  me,  her  unworthy  husband,  the  following  property,  viz: 
All  the  lands  which  I  at  present  own;  lying  on  the  South 
and  West  side  of  Little  River.  Which  are  comprised  in  the 
following  four  separate  plats, — The  land  on  which  my  dear, 
respected  and  lamented  Mother  resided.  Said  land  was  pur- 
chased from  Mr.  James  McCarter,  by  my  dear  and  greatly 
lamented  brother  Genl  William  A.  Btill.  And  by  him,  was 
after  our  dear  Mother's  decease,  kindly  given  to  me  on  the 
21st  of  February,  1833,  on  which  day  he  settled  with  me. 
This  tract  formerly  belonged  to  the  heirs  of  Mr.  William 
Clark  Senr  and  contained  by  the  old  survey  275  acres.  But 
by  a  late  survey  it  has  been  found  to  contain  320  acres.  This 
plat  was  made  by  Peter  B.  Rogers  Esqr — 

"  Adjoining  to  this  tract  on  the  South  and  West  side,  lies 
the  small  square  tract  of  land  which  I  purchased  from  John 
Scott  Esq  containing  100  acres  more  or  less, —  Immediately 
between  these  two  tracts  lies  a  very  small  piece  of  land  con- 
taining 1  1-4  acres  of  ground  only.  Which  I  purchased  this 
present  year  (1842)  from  Mrs.  Eleanor  Scott.  It  was  surveyed, 
measured,  and  the  plat  made  by  Mr — McKinney  D.  S. — On 
the  East  side  lies  the  fourth  piece,  a  small  tract  of  land 
which  I  purchased  from  Mr  William  Clark  Junr.  which 
belonged  to  the  heirs  of  Mr  Alexander  Clark.  I  have  not 
had  convenient  opportunity  to  have  this  tract  resurveyed.  It 
was  said  to  contain  150  acres  more  or  less,  A  very  small 
portion  of  it,  lying  on  the  North  and  East  side  of  Little 
River,  being  inconveniently  situated,  I  have  disposed  of  to — 

"Item  2d.  To  my  dear  and  respected  wife,  I  also  hereby 
give,  my  good  and  aged  servant  Doritha  (Doll)  and  all  her 
children,  and  grand-children,  all  her  descendants  who  are  in 
my  possession  on  either  plantation,  and  on  both  plantations. 
Including  the  husbands  of  her  daughters. — Pompey  the  hus- 
band of  of  Nelly,     I  make  this  kind  and   earnest  request, 


APPEALS  IN  EaUlTY.  UMi 

Columbia,  November  and  December,  1859. 

that  (luring  the  time  of  her  natural  life,  Doll  be  treated  with 
all  tliat  humanity,  moderation  and  kindness  which  her 
advanced  age  and  herlaithful  services  call  for. — also  to  my 
dear  wife  I  hereby  cheerfully  give  all  the  servants  on  my 
farm  at  Little  River.  Their  names  as  follows,  Venus,  Sam, 
Andrew,  with  his  wife  Henny  and  their  children  Hiram  and 
Sarah,  Cumbo,  Stella,  Statira,  Grace,  Prince,  Sylva,  Jacob, 
and  his  wife  Peggy.  Jim  and  Scipio  are  Doll's  children  and 
included  in  lier  family. 

"Item  3d.  To  my  dear  and  respected  wife  I  also  hereby 
cheerfully  give  all  the  stock  on  my  farm  at  little  River,  horses, 
cattle,  sheep  and  hogs.  Also  all  the  buildings  and  conven- 
iences, All  the  j)lantation  tools.  All  the  liouschold  furni- 
ture, which  I  own  on  both  plantations. — And  as  a  most  par- 
ticular mark  of  my  affectionate  respect  and  love,  I  hereby 
give  to  my  dear  wife,  the  large  edition  of  Scott's  Commen- 
tary of  the  Holy  Bible;  which  were  given  to  me  by  my  dear 
Mother  at  lier  death.  Also  all  my  religions  books. — I  hereby 
kindly  and  earnestly  request  of  my  dear  wife,  that  whatever 
articles  of  jewelry,  whether  of  gold  or  silver,  which  may  be 
found  in  our  house  at  the  time  of  my  decease,  may  be  faith- 
fiilly  collected,  and  committed  to  the  care  of  some  trusty 
pious  agent.  And  that  said  agent  by  and  with  th<i  advice 
and  consent  of  my  dear  wife,  do  without  delay  sell  all  such 
articles,  and  give  the  proceeds  to  the  American  Tract  Society 
through  their  Treasurer. 

"The  nature  of  this  writing  in  such,  that  I  wish  it  distinctly 
understood,  and  settled  firmly,  and  known  in  Law,  that  the 
])ropcrty  which  I  have  given  to  my  dear  wife,  I  do,  hereby, 
so  secure  unto  her,  that  no  person  or  persons  whatever,  under 
any  circumstances  whatever,  sludl  be  able  to  deprive  her  of 
any  part  of  it,  duiing  the  period  of  her  nattiral  life.  And 
at  her  death  that  it  shall  be  her  privilege  to  dispose  of  it  ,as 
slie  may  in  her  judgment  and  conscience  think  best. — 

— "Of  the  estate  of  my  respected  and  greatly  lamented 
brother  Genl  William  A.  Bull  Deed,  I  do  hereby  will  and 


164  APPEALS  IN  EaUITY. 


American  Bible  Society  vx.  Noble. 

earneslly  request  that  my  executors  herein  after  named,  shall 
after  my  decease,  make  the  following  disposal  viz:  Should 
my  decease  occur  before  the  close  of  this  present  year  (1S43) 
I  request  that  the  plantation  with  its  necessary  concerns,  the 
field  laborers,  horses,  mules,  oxen  and  plantation  tools,  may 
quietly  remain  together  under  the  charge  of  my  overseer 
until  the  close  of  the  year.  That  my  family  be  permitted  to 
reside  where  they  are  until  the  end  of  the  year.  That  all 
the  business  may  be  permitted  to  proceed  as  usual  during 
the  year.  That  the  remain —  of  the  crop  of  cotton  of  the 
year  1842  may  be  made  ready  and  sent  through  the  agency 
of  Mr  Gollothan  Walker  of  Hamburg  to  the  care  of  Messrs 
Matthews  &  Bonneaw  of  Charleston  So  Ca,  and  requested 
to  be  sold  by  them  as  soon  as  shall  be  convenient.  That 
they  may,  forthwith,  be  honestly  paid  in  full  for  any  and  for 
all  advances  of  money,  which  they  have  been  so  Idnd  as  to 
make  for  me.  That  Mr  Gollothan  Walker  be  authorized  to 
draw  on  them  like  wise,  for  as  much  money  as  shall  be 
sufficient,  honestly  and  fairly,  to  pay  every  debt  which  I 
may  justly  owe  in  Hamburg  and  Augusta  Ga. — Whatever 
money  may  remain  after  paying  these,  I  request  may  be 
devoted  to  paying  my  other  debts  in  the  country,  so  far  as  it 
will  exfend.  My  note  given  to  Alex  Houston  Esq,  1  request 
may  be  paid  among  the  very  first,  with  all  interest  due. 
That  every  other  reasonable  and  just  demand  may  be  fully 
and  honestly  satisfied.  That  my  overseer's  wages  may  be 
paid.  And  all  just  accounts  properly  attested  may  be  paid. 
Should  the  crop  of  1842  fail  to  pay  everything,  as  it  probably 
will,  1  hereby  request  the  crop  of  1843  ("If  the  Lord  will") 
may  be  strictly  devoted  towards  paying  the  remaining  debts. 
To  Oglethorp  University,  by  subscription,  I  justly  owe  $300. 
I  request  that  it  may  be  fully  paid  as  soon  as  possible.  That 
money  may  be  furnished  sufficient  to  pay  the  reasonable  and 
necessary  expenses  of  James  Morrow,  Junr,  while  finishing 
his  Collegiate  course— That  $340  (Three  Hundred  and  forty 
Dollars)  may  be  handed  to  my  dear  wife.     Money  belonging 


APPEALS  IN  EaUITY.  1(55 

Columbia,  November  and  December,  1859. 

to  the  Estate  of  JNIr.  David  Morrow  Deed,  which  I  have  Iicld, 
and  have  endeavored  to  improve.  The  interest  has  been  paid 
up  to  April  12th  1843.  So  soon  as  every  just  debt  can  be  hon- 
estly paid,  I  hereby  request  that  my  executors,  proceed  with- 
out delay,  to  make  correct,  lawful  and  prudent  arrangements 
for  selling  the  whole  Estate.  That  as  much  as  can  possibly 
be  sold  for  cash,  be  thus  disposed  of.  That  the  remainder 
be  advertised  in  due  and  correct  time,  and  the  whole  of  it 
sold,  on  limited  credit.  My  Executors  are  hereby  requested 
to  require  safe  Bonds  and  good  notes  with  approved  securi- 
ties. To  use  every  prudent  and  lawful  means  to  obtain  as 
near  the  just  value  of  the  Estate  as  may  in  the  nature  of  the 
case  be  practicable.  If  possible  in  attending  to  this  business 
to  avoid  all  litigation.  Should  any  difficulty  of  any  kind 
occur,  that  it  be  referred  to  the  prudent  judgment  of  three  or 
five  honest  and  disinterested  citizens,  who  shall  if  necessary 
obtain  legal  counsel  and  decide  to  the  best  of  their  mature 
judgment.  Should  any  doubt  arise  respecting  the  meaning 
and  intention  of  this  my  last  will,  in  any  part  or  sentence 
thereof  I  hereby  desire  that  the  dilficulty  may  thus  be  settled 

according  to  the  plain  import  of  the  words  used. 

"  As  soon  as  the  money  can  be  collected,  I  do  hereby  request 
that  the  sum  of  $5,000  (five  thousand  dollars)  may  be  placed 
at  interest  in  the  Bank  of  Charleston.  Which  sunr,  when 
thus  placed,  I  do  hereby  cheerfully  give  to  James  Morrow 
Junr.  And  do  hereby  so  settle  it,  that  no  person  or  persons 
whatever  under  any  circumstances  or  pretext  whatever  can 
deprive  him  of  it  during  his  natural  life.  That  James  Mor- 
row Junr.  himself  shall  not  be  allowed  to  toucii  or  use 
or  squander  one  cent  of  the  princi|)al.  But  only  to  draw  and 
make  use  of  the  lawful  interest  annually  as  may  seem  to  him 
best. — So  soon  as  the  remainder  can  be  collected,  or  as  much 
as  possible,  I  do  hereby  clieerfully  recpiest  that  my  executors 
imme-  proceed  (o  divide  the  money  into  four  etpial  parts, 
and  I  hereby  cheerfully  bequeath  one  part  to  the  American 
Bible  Society,  the  second  to  the  American  Tract  Society,  the 


166  APPEALS  IN  EaUlTY. 

American  Bible  Society  vs.  Noble. 

third  part  to  the  Presbyterian  Board  of  Publication,  belong- 
ing to  the  General  Assembly  of  the  Presbyterian  Church  in 
the  United  States  of  America,  0.  S.  And  the  fourth  part 
I  hereby  cheerfully  give  to  the  Theological  Seminary,  which 
is  at  present  located  at  Columbia,  So  Ca. ;  and  which  is  at 
present  under  the  care  of  the  Synod  of  South  Carolina  & 
Georgia.  The  said  four  equal  sums  of  money,  I  hereby 
request  may  be  given  by  my  executors  for  the  use  and  benefit 
of  said  above  named  Benevolent  and  Christian  Institutions, 
through  their  respective  Treasurer.  And  if,  as  is  possibly 
the  case,  through  ignorance,  I  have  failed  to  use  such  words 
as  are  customary  in  Law.  I  hereby  plainly  and  positively 
desire,  that  may  not  prevent,  the  fulfilment  and  accomplish- 
ment of  my  wishes  in  the  plain  and  obvious  meaning  and 
intent  the  words  used.  But  that  my  executors  take  such 
prudent,  timely  &  peaceful  measures  as  may  be  efl^ectual  to 
secure  the  lawful  and  entire  accomplishment  of  every  part  of 
this  instrument  of  writing  in  its  plainest  sense,  however 
defective  in  phraseology. — 

"  And  that  there  may  be  no  litigation  or  contention  con- 
cerning my  affairs  after  my  decease,  or  even  dissatisfaction  in 
any  way. — That  my  executors  may  be  disposed,  graciously 
directed  and  assisted  by  Spirit  and  Grace  of  God  so  as  to  deal 
justly,  and  properly  and  honestly  dispose  of  7?iy  estate  is  my 
sincere  and  earnest  desire.  And  that  it  may  please  the  Lord 
in  his  great  Mercy  to  sanctify  and  bless  this  poor  qjffering  in 
His  Name  given,  so  that  some  needy  person  may  be  assisted, 
and  some  poor  soul  may  be  brought  to  Repentance  and  Faith 
in  the  name  of  Jesus  Christ  Our  Saviour,  is  the  humble  prayer 
of  his  unworthy  servant. — 

'And  now  into  the  hands  of  my  Saviour,  Jesus  Christ,  the 
Son  of  God,  I  humbly  commit  my  Spirit  in  Faith.  Unto 
God,  the  Father,  son  and  Holy  Spirit,  the  only  wise,  living 
and  true  God,  I  humbly  resign  my  Soul  in  the  name  of  Jesus 
Christ.     Amen. 

"I  do  hereby  choose  and  appoint  William  P.  Noble,  Paul 


APPEALS  IN  EaUITY.  107 

Columbia,  Noveiiiher  and  December,  ISTjO. 

Rogers,  and  Edmund  C  Martin  to  be  the  Lawful  Executors 
of  this  my  last  will  and  testament.  Who  are  hereby  sol- 
emnly requested  faithfully  to  discharge  their  trust. — Again  I 
repeat  my  injunction  lo  avoid  all  Litigation. — T  do  hereby 
declare  &  acknowledge  this  to  be  my  last  will  and  testament, 
in  testimony  whereof  I  (h>  mw  solemnly  affix  my  name  in  the 
presence  of  these  three  witnesses. 

"JOHN  B  BULL. 

"April  Sth  1843 — 
«  Wm  H  Davis 
*'  J  L  BouciiiLLON  Senr 
"  E.  C.  Martin" 

After  this  will  was  established,  Sarah  Bull,  the  widow  of 
the  testator,  died  in  the  latter  part  of  the  year  1S57,  leaving 
a  will,  by  which  she  devised  and  bequeathed  her  whole  es- 
tate to  Dr.  James  Morrow,  her  son  by  her  former  marriage, 
constituting  him  her  sole  lesatee,  and  executor  of  her  will. 
The  present  bill  was  filed  the  1,3th  of  IVLay,  1858,  by  three  of 
the  four  benevolent  institutions  mentioned  in  the  will,  for  an 
account  of  their  inlerests  under  the  will;  and  the  other 
benevolent  society,  the  qualified  executor,  the  next  of  kin, 
and  Dr.  Morrow,  are  made  defendants. 

The  points  raised  at  the  hearing  will  be  understood  from 
the  judgment  delivered. 

Johnston,  Ch.  In  the  third  clause  of  his  will,  the  testator 
provides  :  "  So  soon  as  every  just  debt  can  be  honestly  paid,  I 
liereby  recjuest  that  my  executors  proceed,  without  delay,  to 
make  correct,  lawful  and  prudent  arrangements  for  selling 
the  whole  estate,"  &c. 

It  is  contended  that  this  direction  is  confined  to  the  Savan- 
nah property ;  and  does  not  embrace  even  the  whole  of  that 
property,  but  that  Berry  Hill,  a  plantation  purchased  by  the 
testator,  contiguous  to  the  body  of  the  lands  on  Savannah, 
which  he  inherited  from  his  brother,  Gen.  Bull,  is  excluded. 


168  APPEALS  IN  EQUITY. 

American  Bible  Society  vs.  Noble. 

Whether  the  words  be  confined  to  the  Savannah  estate,  or  be 
allowed  their  natural  meaning,  and  be  held  to  inchide  the 
whole  estate  not  specifically  disposed  of  in  a  manner  incon- 
sistent with  a  sale;  in  either  case,  both  realty  and  personal 
property  would  fall  within  their  operation. 

It  is  not  a  direction  to  sell  the  real  estate  on  the  Savan- 
nah, apart  from  the  personalty  appertaining  to  that  estate, 
nor  to  sell  the  whole  of  testator's  real  estate,  wherever  situ- 
ated, in  exclusion  of  his  personal  estate;  but  to  sell  the 
whole  estate,  whether  it  be  real  or  personal. 

The  testator  had  specifically  disposed  of  a  large  portion  of 
his  estate,  real  and  personal;  j)art  of  it  for  the  life  of  the 
beneficiary,  and  part  of  it  absolutely,  but  there  was  no  sweep- 
ing legacy  or  devise  given  of  whatever  overplus,  there  might 
be.  So  that,  in  any  view  that  can  be  taken,  there  was  mate- 
rial, without  confining  ourselves  to  the  Savannah  estate,  for 
a  sale,  if  the  testator  were  minded  to  order  one,  in  order  to 
raise  funds  to  meet  special  or  general  purposes. 

As  the  testator  manifestly  intended  to  dispose  of  his  whole 
estate,  and  has  not  done  so  unless  the  words  "  the  whole 
estate"  be  interpreted  in  their  natural  sense;  and  as  his 
bequest  of  the  residue  of  the  proceeds  of  the  sale  directed, 
after  the  special  legacies  charged  upon  them,  would,  upon 
the  construction  contended  for,  constitute  a  special  residuary 
disposition,  and  not  a  general  residuary  clause  disposing  of 
his  whole  estate:  I  am  persuaded  that  such  an  interpreta- 
tion of  the  will  would  be  at  variance  with  the  testator's 
intention. 

The  construction  should  be  upon  the  whole  will,  and  not 
upon  detached  portions  of  it;  every  word  and  phrase  should, 
if  possible,  be  taken  in  its  full  and  natural  meaning:  and  the 
leaning  of  the  Court  should  be  to  give  such  construction  to 
the  whole  as  to  prevent  intestacy  in  any  part  of  the  estate. 

It  is  argued  that  the  words  here  used  are  employed  with 
exclusive  reference  to  the  estate  which  the  testator  had  fanci- 
fully designated,  not  as  his  own,  but  as   the  estate  of  his 


APPEALS  IN  EQUITY.  100 

Columbia,  November  and  December,  1S59. 

brother,  from  whom  he  inherited  it.  Hut  I  do  not  find 
enough  to  convince  me  that  wlieii  he  directed  tlie  sale  of  the 
whole  estate,  his  attention  was  tied  down  to  that  special 
property. 

The  only  use  to  which  I  perceive  he  directed  his  executors 
to  put  that  property,  was  to  complete  the  croj)  of  1S43,  whicii 
was  growing  when  he  executed  his  will,  and  out  of  the  pro- 
ceeds of  that  crop,  and  what  remained  on  hand  of  the 
preceding  crop,  to  pay  his  debts — a  purpose  which  he  lived 
to  accomplish  himself.  Now,  if  he  had  adopted  the  ordinary 
method  of  providing  for  his  debts,  in  the  beginning  of  his 
will,  this  direction  for  the  employment  of  this  plantation,  for 
that  purpose,  would  have  been  found  at  the  head  of  the  will; 
and  not  in  the  middle  of  the  third  clause,  which  embraces 
subjects  of  a  somewhat  miscellaneous  character:  some  of 
which  undoubtedly  relate  to  other  portions  of  his  estate,  and 
others  as  certainly  relate  to  his  whole  estate,  without  respect 
to  location.  If,  then,  we  transpose  that  portion  of  tlie  third 
clause,  of  wliich  I  am  speaking,  to  the  head  of  the  will,  the 
whole  becomes  harmonious,  and  there  would  reu)aiii  no 
doubt  that  the  direction  to  sell  the  whole  estate  would  mean 
the  whole;  and  would  have  no  such  confined  operation  as 
that  contended  for.  Then  it  would  be  followed  by  the  devise 
of  the  Little  River  lands  to  his  wife  for  life,  with  a  power  of 
further  a[)pointment  in  her;  by  the  gift  of  certain  slaves  and 
their  issue,  and  of  other  slaves.  But  still  there  is,  as  yet,  no 
disposition  of  Berry  Hill,  nor  of  the  lands  formerly  owned 
by  Gen.  Bull ;  nor  any  disposition  of  the  remainder  in  the 
Little  River  lands,  supposing  his  wife  should  make  no  dis- 
position under  her  power. 

If  the  testator  intended  to  confine  his  direction  to  sell,  to 
the  land  formerly  belonging  to  Gen.  liull,  then  ho  infcndcd 
to  die  intestate  as  to  Berry  Hill — or  he  casually  omitted  one 
thousand  acres  of  his  own  lands  ;  in  addition  to  a  possible 
intestacy  in  the  remainder  of  the  Little  River  lands,  .vhich  is 
scarcely  credible. 


170  APPEALS  [N  EaijlTY. 

American  Bible  Society  vs.  Noble. 

If  he  contemplated  Berry  Hill  as  parcel  of  Gen.  Bull's 
estate,  the  principal  snpport  and  object  of  the  narrow  con- 
strnction,  now  contended  for,  is  taken  away. 

On  the  whole,  I  conclnde,  with  confidence,  that  the  order 
for  sale  shonld  be,  and  was  intended  to  be,  general;  and  the 
effect  of  it  is  to  dispose  of  every  portion  of  the  estate  not  dis- 
posed of  by  provisions  inconsistent  with  such  sale.  It  conld 
not  take  in  the  negroes  given  by  the  testator  to  his  wife,  nor 
the  estate  for  life  given  to  her  in  the  Little  river  lands.  But 
it  takes  in  the  lands  formerly  belonging  to  Gen.  Bull,  and 
reaches  to  Berry  Hill,  and  to  every  subject  in  his  whole 
estate  that  would  otherwise  have  been  intestate;  and  would 
liave  included  the  remainder  in  the  Little  river  lands,  had 
not  his  wife  (who,  though  an  alien,  could  take  and  hold  the 
life  estate  till  office  found)  executed  her  power  of  appoint- 
ment 

I  will  not  enlarge  on  this  point,  for  I  conceive  it  to  be  very 
plain.  I  will  merely  add  that,  upon  the  evidence,  I  should 
have  tield,  had  it  been  necessary,  that  Berry  Hill  was  in- 
cluded in  the  order  to  sell,  were  that  order  confined  to  what 
the  testator  called  his  brother's  estate.  The  evidence  taken 
by  the  commissioner  shows,  I  think,  that  he  so  planted  the 
estate,  including  Berry  Hill,  and  so  marked  the  cotton, 
whether  raised  on  the  one  place  or  the  other,  as  to  show  that 
lie  regarded  them  as  one  establishment.  The  admirable 
work  of  Sir  James  Wigram,  (Wigram  on  Wills,)  has  done 
much  to  reduce  to  fixed  principles  the  rules  which  should 
govern  in  such  cases;  much  to  restrain  that  license  of  con- 
struction that  too  much  prevailed  formerly  and  still  pre- 
vails to  an  undue  extent.  When  descriptive  words  find 
a  subject  that  satisfies  them  in  their  natural  and  primary 
nx^aning,  other  subjects  shall  not  be  forced  under  their 
cover,  though,  otherwise,  they  miglit  be  accommodated  to 
them  in  a  less  natural  or  secondary  sense.  But  there  is 
no  primary,  or  natural,  or  legal  sense,  in  which  either  par- 
cel of  -^f^ese  lanas  uuukl    be  denominated    by   the   testator 


APPEALS  IN  EaUITY.  171 

Colimibia,  November  and  December,  lSr)9. 

"tlie  estate  of  his  brother."  The  lands  he  inherited  had 
no  name,  and,  for  convenience,  he  niiist  speak  of  them 
by  some  description.  In  his  fancy  he  called  them  his 
brother's  estate,  by  way  of  description.  When  he  added 
Berry  Hill  to  them,  and  afterwards  spoke  of  them,  did  he  not 
do  what  is  very  common? — did  he  not  regard  the  addition 
as  a  constituent  portion  of  the  old  establishment?  I  think 
he  did.  I  think  the  evidence  shows  this.  He  has  one  over- 
seer for  both  places.  He  allows  the  dividing  fence  to  become 
extinct  between  them.  He  throws  their  productions,  corn 
and  cotton,  together;  and  marks  the  cotton  with  one  brand, 
which  was  on  the  place  in  his  brother's  time.  We  have  a 
case,  somewhat  similar,  somewhere  in  our  own  books,  relat- 
ing, I  think,  to  some  wharf  property  in  ("harleston,  in  which 
the  view  I  am  intimating  was  taken  ;  and  I  concur  in  the 
remark  of  Sir  James  Wigram,  (Wig.  Wills,  22,)  that  in  the 
case  referred  to  (in  argument)  of  Doe  ex  dein.  Oxenden  vs.  Chi- 
chester, (3  Taunt.,  147,  s.  c,  4  Dow,  65,)  "  the  principle  now 
under  consideration  was  carried  to  \ts  full  extent."  In  that 
case,  the  testator  devised  my  "estate  of  Ashton"  to  Oxenden, 
and  had  an  estate  which  he  used  to  call  by  the  name  of  his 
"Ashton  estate,"  the  accounts  relating  to  which  were  kept  in 
his  steward's  book  under  that  name.  Part  of  this  estate 
only  was  locally  situated  at  Ashton.  Only  so  much  as  was 
thus  situated  was  held  to  pass.  This,  I  conceive,  was  a 
strained  construction.  But  the  view  I  have  taken  renders  it 
unnecessary  to  pursue  this  further.  The  direction  to  the 
executors  to  sell  extended  to  Berry  Hill  as  otherwise  intestate, 
whether  regarded  as  embraced  in  the  land  inherited  from 
Gen.  Bull  or  not. 

The  order  to  sell,  also  took  in,  as  intestate,  a  portion  of  the 
slaves. 

Part  of  the  second  clause  of  the  will  is  in  these  words : 
"To  my  dear  and  respected  wife,  I  niso,  hereby  give   my 
good  and  aged  servant  Dorethea,  (Doll,)  and  all  her  children 
and  grand-children,  all  her  descendants,  who  are  in  my  pos- 


172  APPEALS  IN  EaUlTY. 

American  Bible  Society  vs.  Noble. 

session,  on  either  plantation,  and  on  both  plantations,  includ- 
ing the  husbands  of  her  daughters." 

So  far,  there  can  be  no  difficulty.  Whether  the  testator 
referred  to  his  possession,  at  the  date  of  his  will,  or  at  his 
death — which,  under  the  general  rule,  in  all  cases,  he  must 
be  held  to  have  done,  {Garret  vs.  Garret,  2  Strob.  Eq.,  283,) 
can  make  no  sort  of  difference:  for  the  gift  is  of  all  the  issue  of 
Dolly,  and  on  both  plantations:  and  supposing  him  to  have 
referred  to  the  date  of  the  will,  yet,  as  I  shall  hold  hereafter, 
the  gift  will  extend  to  after  borti  descendants  on  either  plan- 
tation. 

But  he  proceeds  :  "  Also,  to  my  dear  wife  I  hereby  cheer- 
fully give  all  the  servants  on  my  farm  at  Little  River: — 
their  names  as  follows  :  Venus,  Sam,  Andrew,  with  his  wife 
Henny,  and  their  children,  Hiram  and  Sarah,  Gumbo,  Stella, 
Statira,  Grace,  Sylva,  Jacob  and  his  wife  Peggy.  Jim  and 
Scipio  are  Doll's  children,  and  included  in  her  family."  I 
apprehend  tiiat  the  testator  intends  here  to  speak  of  negroes 
on  the  Little  River  plantation,  at  the  date  of  his  will,  as  is 
evidenced  by  his  proceeding  to  name  them  :  and  that  he  did 
not  intend  to  refer  to  such  negroes  as  might  be  on  that  plan- 
tation when  his  will  began  to  operate  at  his  death.  The 
bequest  will  carry  all  those  slaves  named  by  him  ;  and  if 
there  were  any  coming  within  the  description,  whom,  in  his 
enumeration  he  accidentally  omitted,  these  would  pass  with 
the  rest. 

Among  the  rest,  he  gives  Andrew  and  his  wife  Henny, 
with  their  children.  I  am  not  sufficiently  put  in  possession 
of  the  facts  to  know,  whether  in  naming  those  who  in  his  list 
immediately  follow  those  two,  he  has  not  attempted  to  name 
these  children.  If  he  did,  then  it  follows,  I  think,  that  he 
hab  given  none  of  the  children  of  Andrew  and  Henny,  but 
those  whom  he  names  as  such.  But  if  he  did  not  attempt 
to  enumerate,  I  think  he  must  be  held  to  give  all  their  chil- 
dren, born  or  to  be  born. 

When  I  speak  thus,  I  do  not  forget  that  it  has  been  held 


APPEALS  IN  EaUITY.  17:^ 

Columbia,  November  and  December,  1859. 

that  a  legacy  of  a  nogvo  woman  with  her  ii}crease,{Seibles  vs. 
Whatley,  2  Hill  Ch.,  605,)  does  not  include  existing,  but  only- 
future  progeny.  There  is  a  distinction,  however,  in  my  mind, 
which  I  fear  I  should  he  incapable  to  convey,  were  I  elabo- 
rately to  attempt  to  impress  it  upon  others.  It  may  be  sulil- 
cient  to  say,  that  the  Court  in  dealing  witli  the  subject  of 
increase,  while  it  might  have  admitted  that  the  term  might 
be  well  applied,  not  only  to  after,  but  to  ])rior  increase,  and 
so  it  might  have  doubted  upon  the  subject  of  excluding  the 
latter;  yet  it  conceived  that  by  long  and  pretty  uniform  usage 
in  this  State,  the  term  increase,  without  more,  had  obtained  a 
fixed  meaning.  It  meant  the  progeny  which  was  to  proceed 
from  the  stock  slave  from  the  date  of  the  instrument.  But 
has  any  such  restricted  meaning  been  imposed  on  the  term 
children  or  its  equivalent  ?  Has  this  been  done  by  the  cases  : 
or  does  such  a  meaning  exist  in  popular  language  ?  Not  to 
my  knowledge.  The  cases  are  numerous  and  uncontra- 
dicted, that  when  property  is  limited  by  will  to  children  o{  A. 
or  B.,  all  their  children  will  take,  whether  born  before  or 
after  the  date  of  the  instrument,  provided  they  are  born 
before  the  limitation  comes  to  operate  ;  and  so,  if  the  limita- 
tion be  to  the  children  of  C.  or  D.  to  take  effect  upon  a  con- 
tingency, the  existitjg  children  will  take,  as  well  as  others  to 
come  in  esse,  upon  the  happening  of  the  contingency.  The 
instrument  takes  in  the  existing  children  without  difficulty. 
The  difficulty  would  rather  l»ave  been  whether  after  born 
children  should  be  entitled.  But  the  point  is  decided  that 
after  born  children  are  children — come  within  the  descrip- 
tion— and  the  instrument  shall  open  and  receive  them,  as 
persons  described,  until  the  event  happens  compelling  a  dis- 
tribution, and  (lius  rendering  it  im|)ossible  to  receive  more. 
For  examples  of  this  kind,  I  refer  to  the  cases  of  Deveaiix  vs. 
Deveuux,  and  McNish  vs.  Gucrrard,  decided  in  this  ('ourl. 
These  cases,  and  others  innumerable  upon  the  import  of  the 
word  children,  show  that  w.  has  not  received  a  restricted 
meaning  in  law  confining  it  to  y,oc/  nati.     I  regret  that  the 


174  APPEALS  IN  EaUlTY. 

American  Bible  Society  vs.  Noble. 

decision  in  Seibles  vs.  Whatley  was  different  as  respects  the 
import  of  the  word  increase:  but  I  do  not  feel  bound  to 
carry  it  beyond  its  letter,  and  apply  it  to  children,  especially 
as  in  so  doing,  I  should  violate  not  only  the  popular  under- 
standing, but  a  uniform  current  of  decisions.  When  the  gift 
is  of  children,  why  should  the  meaning  of  the  word  differ 
from  what  it  is  when  the  gift  is  to  children  ?  As  to  the  other 
negroes  given  in  the  last  passage  I  have  quoted,  they  are 
given  by  name  or  individual  description,  but  without  the 
accompaniment  of  their  children,  issue  or  increase,  which 
amounts  to  no  more  than  a  gift  of  the  existing  and  named 
or  described  negroes;  atid  does  not  carry  ihe post  nati  issue. 
Such  issue  is,  therefore,  in  my  opinion  intestate,  and  falls 
under  the  direction  to  sell. 

We  approach  now  one  of  the  most  important  parts  of  this 
cause. 

Out  of  the  proceeds  of  sale,  when  collected,  the  testator 
directs  that  the  sum  of  $5,000  be  placed  "at  interest  in  the 
Bank  of  Charleston.  Wh'\(sh  s,\\m,ivhen  thus  placed,  I  do," 
he  proceeds,  "hereby  cheerfully  give  to  James  Morrow,  Junr. 
And  I  do  hereby  so  settle  it,  that  no  person,  or  persons, 
whatever,  under  any  circumstances  or  pretext  whatever,  can 
deprive  him  of  it  during  his  natural  life.  That  James  Mor- 
row, Junr.,  himself,  shall  not  be  allowed  to  touch,  or  use,  or 
squander,  one  cent  of  the  principal,  but  only  to  draw,  and 
make  use  of,  the  interest,  annually,  as  may  seem  to  him 
best." 

The  sum  as  placed  at  interest  is,  in  the  first  instance, 
bequeathed  to  Dr.  Morrow,  in  general  terms,  sufficient  to  vest 
the  property  in  him.  If  we  are  to  construe  the  legacy  in 
parcels,  the  words  which  follow,  forbidding  himself,  or  other 
persons,  from  touching  the  thing  given,  as  liable  to  the  inci- 
dents of  absolute  property,  are  nugatory  and  void.  I  am 
much  inclined,  however,  to  construe  all  the  words  together, 
and  to  regard  this  as  the  gift  of  i^n  annuity  for  his  life;  the 
gift  of  the  annual  interest  ^i"  the  §5,000  for  his  life,  and  not 


APPEALS  IN  EaUITY.  175 


Columbia,  November  and  December,  1S59. 


tlie  gift  of  the  $5,000.  This  Court — all  Courts — should  look 
to  substance,  aud  not  merely  to  forms. 

The  direction  of  the  Court  upon  this  suhject  is,  thai  the 
commissioner  enquire  for  and  report  a  suitable  trnstee,  to 
hold  the  fund  npon  the  terms  I  have  jnst  indicated;  and  that 
the  executors,  after  making  the  investment,  hold  it  on  those 
terms  until  a  trustee  he  reported  and  appointed,  and  then 
transfer  it  to  such  trustee. 

When,  by  the  death  of  Dr.  Morrow,  the  corpus  of  this 
$5,000  annuity  falls  in,  it  will  be  time  enough  to  enquire 
where  it  is  to  go;  and  that  question  is  reserved. 

Then,  subject  to  this  legacy  of  $5,000,  the  testator  directs 
that  the  remainder  of  the  proceeds  of  sale  be  divided  into 
four  equal  shares,  one  of  which  he  bequeaths  to  the  Ameri- 
can Bible  Society,  another  to  (he  American  Tract  Society, 
another  to  the  Board  of  Puhlication  belonging  to  the  General 
Asseujbly  of  the  Prcsliyterian  Church  in  the  United  States  of 
America,  (Old  School.)  and  the  remaining  share  to  the  Theo- 
logical Seminary,  at  Columbia,  under  the  care  of  the  Synod 
of  South  Carolina  and  Georgia. 

But  objections  are  raised  under  the  statute  of  the  9th  April, 
1734,  3  Stat.,  382;  the  second  section  of  which  reads  thus: 

"That  from  and  after  the  ratification  of  this  Act,  all  and 
singular,  every  person  and  persons  having  any  estate  or 
interest  in  fee  simple,"  &.C.,  "of  and  in  any  lands,"  "shall 
and  may  have  free  power,"  "  f o  give,  dispose,  will  or  devise 
to  any  person  or  persons,  (except  bodies  politic  or  corporate,) 
by  his  last  will  and  testament,  duly  executed,"  "as  much  as 
in  him  (if  right  belongs,  is,  or  shall  be,  all  his  said  lands," 
"at  his  and  their  own  free  will  and  pleasnre,"  &.c. 

This  is  tho  only  siatule  of  mortmain  known,  it  is  believed, 
to  the  legislation  of  this  State.  None  of  the  English  statutes 
on  that  subject  were  ever  made  of  force  here.  J^ut  it  is  very 
proper  to  enquire  what  eftt/^t  this  statute,  if  still  of  force,  has 
upon  the  devise  in  this  case.  It  is  plain,  at  the  outset,  that 
its  effects,  whatever  they  may  be,  urp,  limited  to  the  proceeds 


176  APPEALS  ]N  EaUiTY. 

American  Bible  Society  vs.  Noble. 

of  the  real  estate.     There  is  no  prohibition  as  to  personaUy 
in  this  statute. 

Justice  Blackstnne  (2  Bl.  Com.,  268,  ef  seq.,  Lib.  2,  cap.  IS) 
tells  us,  that  alienations  in  mortmain  {i?i  mortu  manii)  are 
transfers  of  land  to  a  corporation,  whether  sole  or  aggregate, 
ecclesiastical  or  temporal;  in  consequence  of  which  the  lands 
became  perpetually  held  in  one  dead  hand. 

By  tlie  common  law,  he  says,  any  man  might  dispose  of 
his  lands  to  any  otiier  private  man  at  his  own  discretion, 
especially  after  the  feodal  restraints  were  worn  away.  Yet, 
in  consequence  of  those,  it  always  was  and  still  is  necessary 
(F.  N.  B.,  121)  for  corporations  to  have  a  license  of  mort- 
main from  the  crown,  to  enable  them  to  purchase  lands. 
For,  as  the  king  is  the  ultimate  lord  of  every  fee,  he  ought 
not,  unless  by  his  own  consent,  to  lose  his  privilege  of 
escheat,  and  other  profits,  by  the  vesting  of  land  in  tenants 
that  can  never  be  attainted  or  die.  Besides  the  license  from 
the  king,  it  was  also  requisite,  where  there  was  a  mesne  or 
intermediate  lord  between  the  king,  the  lord  paramount  and 
the  alienor,  to  obtain  his  license  also,  (upon  the  same  feodal 
principles,)  for  the  alienation  of  the  specific  land.  And  if 
no  such  license  was  obtained,  the  king,  or  other  lord,  might 
respectively  enter  on  the  lands  so  alienated  in  mortmain  as 
a  forfeiture.  To  obviate  this  forfeiture,  however,  when  no 
license  was  obtained,  the  religions  houses,  (who  set  them- 
selves to  circumvent  the  law,)  inasmuch  as  the  forfeiture 
accrued,  in  the  first  place,  to  the  immediate  lord  of  the  fee, 
contrived  tiiat  the  alienor  should  convey  to  the  religious 
house,  and  instantly  take  back  again,  to  hold  as  tenant  of 
the  moiiastry;  the  instantaneous  seisin  in  which,  probably, 
was  held  to  occasion  no  forfeiture;  and  tlien^  in  virtue  of 
some  other  pretended  forfeiture,  surrender  or  escheat,  the 
society  entered  on  tVieir  newly  acquired  seignory,  as  imme- 
diate lords  of  the  fee. 

The  consequence,  when  s\\o'^  donations  became  numer- 
ous, was,  that  the  feodal  sf^-^'ces  ordained  to  the  defence  of 


APPEALS  IN  EaUlTY.  177 

Columbia,  November  and  December,  1809. 

the  kingdom  were  daily  visibly  withdrawn;  the  circnlation 
of  landed  property  from  man  to  man  began  to  stagnate;  the 
lords  were  curtailed  of  the  fruits  of  their  seignorics,  their 
escheats,  wardship,  relief,  and  the  like.  This  state  of  things 
occasioned  the  second  great  charter,  9  Henry  III,  (A.  D., 
1225.)  by  whicli,  and  by  that  printed  in  the  common  statute 
books,  it  was  ordained  that  all  such  attempts  siiould  be  void, 
and  that  the  land  should  be  forfeited  to  the  lord  of  the  fee. 

This  prohibition  extended  only  to  religious  houses,  and 
not  to  sole  corporations,  and  being  evaded  by  the  bishops, 
the  abuse  was  attempted  to  be  corrected  by  the  statute  de 
religinsis,  7th  Edw.  I,  which  provided,  that  no  perso)i  what- 
ever, religious  or  other,  should  buy  or  sell,  or  receive  under 
pretence  of  a  gift,  any  title  to  lands,  or  by  any  contrivance 
appropriate  them  to  himself,  in  mortmain,  upon  pain  that  the 
immediate  lord  of  the  fee,  or  if  he  should  make  default  for 
one  year,  the  lord  paramount,  and  in  default  of  all  of  these, 
the  king  might  enter  on  the  lands  as  a  forfeiture.  The  stat- 
utory prohibition  as  yet  only  extended  to  gifts  and  convey- 
ances inter  paries,  and  the  device  was  adopted  of  bringing 
an  acliitu  under  a  fictitious  title  against  the  tenant,  who 
collusively  al)stained  from  defence,  and  thus  the  lands  were 
recovered  by  law;  thus  originating  the  assurance  of  coni>non 
recoveries.  This  abuse  was  met  by  the  statute  of  Westmin- 
ster the  second,  13  Edw.  I,  ch.  32,  which  enacted  that  in 
such  cases  the  true  right  of  the  plaintiff  should  be  tried  by  a 
jury;  and  if  the  religious  house,  or  corporation,  be  found  to 
have  it,  they  shall  recover  seisin,  otherwise  the  land  shall  be 
forfeited.  To  this  statute  others  were  added,  not  necessary 
to  notice  here.  These  were  all  frustrated  by  contriving  that 
the  la;:ds  should  not  be  granted  directly  to  the  corporation, 
l»ut  to  imminal  feoffees  fo  their  use,  distinguishing  between 
the  possession  and  the  use,  and  giving  to  the  corporation  the 
actual  ))rofits.  while  the  seisin  was  in  the  nominal  feoffee, 
who  was  accountable  as  trustee;  thus  originating  i/ses  and 
trusts,  the  foundation  of  modern  English  conveyancing. 
13 


178  APPEALS  IN  EaUITY. 

American  Bihle  Society  vs.  Noble. 

This  was  met,  again,  by  the  15  Rich.  II,  chap.  5;  which 
statute  ordained  that  lands  so  purchased  to  uses  should  be 
amortized  by  the  license  from  the  crown,  or  sold  to  private 
persons;  and  that,  in  future,  w^es  should  be  subject  to  the 
statutes  of  mortmain,  and  forfeitable  like  the  lands  them- 
selves. Moreover,  large  tracts  of  lands,  which  were  pur- 
chased and  fraudulently  consecrated  as  graveyards,  were 
declared  within  the  scope  of  the  statutes;  and  civil  as  well 
as  ecclesiastical  corporations  were  declared  to  be  within 
the  mischief  contemplated  by  the  statutes  of  mortmain.  By 
statute  23  Henry  VIII,  ch.  10,  it  is  declared  that  all  grants  of 
land,  though  not  to  corporations,  yet  for  superstitious  uses  or 
charges  erected  for  such  purposes,  should  be  void,  if  granted 
for  more  than  twenty  years. 

The  Mortmain  Acts  were  suspended  for  twenty  years  by 
the  1  and  2  Pliilip  and  Mary,  Ch.  8. 

Then  this  general  policy  was  further  relaxed  by  the  7  and  8 
Will.  Ill,  ch.  37,  which  empowered  the  crown  to  grant  license, 
at  its  discretion,  to  alien  or  take  in  mortmain  of  whomsoever 
the  tenements  may  be  holden. 

It  having  been  held,  (1  Rep.,  24,)  that  the  statute  23  Henry 
VIII,  ch.  10,  before  mentioned,  did  not  extend  to  charitahle 
but  only  to  superstitioxis  uses,  and  therefore  land  might  be 
given  to  maintain  a  school,  a  hospital  or  other  charitable 
institution;  and  it  being  apprehended  that  persons  on  their 
death-beds,  might  make  large  and  improvident  dispositions, 
even  for  charitable  purposes,  thus  defeating  the  political  end 
of  the  statutes  of  mortmain,  it  was  therefore,  enacted  by  the 
9th  Geo.  II,  ch.  26,  (A.  D.  1736,  set  out  1  Bac.  Abr.  Title 
charitable  uses  and  mortmain,  G.)  two  years  after  our  own 
statute  quoted  by  me,  that  no  lands,  or  tenements,  or  money 
to  be  laid  out  therein,  shall  be  given  for,  or  charged  with  any 
charitable  uses  whatsoever,  unless  by  deed,  indented,  exe- 
cuted in  presence  of  two  witnesses,  twelve  calendar  months 
before  the  death  of  the  donor,  and  enrolled  in  the  Court  of 
Chancery  within  six  months  from  execution,  and   made  to 


APPEALS  IN  EaUITY.  179 

Columbia,  November  and  December,  1S59. 

take  efff^ot  immediately,  and  without  power  of  revocation; 
and  that  all  other  gifts  shall  be  void;  (except  that  stocks  in 
the  ])nblic  fnnds  may  be  transferred  within  six  months  pre- 
vious to  the  donor's  death.) 

It  will  be  seen  from  this  statement  of  the  great  commen- 
tator, that  if  these  English  statutes  were  of  force  in  this  Statp, 
as  they  are  not,  there  is  not  one  of  them  that  in  terms  avoids 
gifts  to  corporations,  except  when  land  itself  is  given,  or 
when  money  is  given  to  be  laid  out  in  land.  The  principal 
reason  assigned  for  the  statutes  of  mortmain,  such  as  the 
vesting  of  land  in  corporations  incapable  of  feodal  services, 
the  joss  of  escheats,  wardships,  reliefs,  &c.,  and  the  perpetual 
stagnation  of  such  property  in  the  hands  of  those  not  liable 
to  attainder  or  to  deatli,  apply  only  to  the  permitting  lands 
to  be  conveyed,  directly  or  indirectly  to,  and  held  by,  such 
bodies. 

The  motive  to  the  statutes  is  not  so  much  to  place  a 
restraint  on  the  alienor,  (except  for  his  protection,  for  exam- 
ple in  the  statute  of  9th  George  II,)  as  upon  the  holding  of 
the  thing  given  by  the  alienee,  i.  e.,  on  account  of  his  legal 
and  political  unfitness  to  be  the  owner  of  lands;  the  mischief 
to  the  State  of  its  lands  being  perpetually  monopolized  by 
those  in  whose  hands  it  is  not  subject  to  the  usual  incidents 
of  ownership. 

The  'I'heological  Seminary,  to  which  one-fourth  of  ibe 
residue  of  the  proceeds  of  sale  is  given  by  Mr.  Bull,  is  by 
its  original  charter,  (8  Stat.,  376,  statute  1832,  No.  2,574,  § 
1-3,)  specially  licensed  and  "empowered  to  retain,  hold, 
possess  and  enjoy  all  such  properly  as  it"  "  may  now"  "  be 
possessed  of,  or  entitled  to,  or  which  shall  hereafter  be  given, 
or  bequeathed  to,  or  in  any  manner  acquired  by"  it,  "and  to 
sell,  &c.,  the  same,"  "to  the  amount  of  ^300,000."  Which 
charter  is  renewed  (Acts  of  1854,  p.  347,)  "with  all  powers, 
privileges  and  conditions  heretofore,  by  the  Act  of  incorpora- 
tion, conferred  upon  said  body  corporate,  with  ability,  power 


180  APPEALS  L\  EaUlTY. 

American  Bible  Scciety  vs.  Noble. 

and  capacity  to   receive,  hold    and   enjoy  property,  real   and 
personal,  to  the  amount  of  $300,000," 

These  enactments  are  sufficient — to  say  nothing  of  the 
Constitution  of  17SS — not  only  to  license  this  corporation  to 
take  the  land  itself,  had  that  heen  given,  but  to  repeal  the 
statute  of  1734 — so  far  as  this  particular  body  corporate  is 
concerned — if  that  stood  in  the  way. 

This  corporation  is,  therefore,  clearly  entitled  to  the  fourtli 
given  to  it  out  of  the  fund  involved  in  this  discussion.  It 
was  contended,  indeed,  that  should  the  other  corporations 
interested  in  the  same  fund  fail  to  make  good  their  claim, 
the  Seminary  would  be  entitled  to  come  in  for  the  whole. 
But  this  is  not  an  improper  place  to  remark,  that  no  such 
consequence  can  obtain  under  this  will.  The  fund  is  not 
given  between  and  among  the  beneficiaries,  but  it  is  given  in 
parcels;  to  each,  one-fourth,  and  no  more. 

The  charter  conferred  by  the  State  of  Pennsylvania  upon 
the  trustees  of  the  Presbyterian  Board  of  Publication,  author- 
izes the  corporation  "to  purchase  and  receive,  lake  and  hold, 
to  them  and  their  successors,  forever,  lands,  tenements  and 
hereditaments,  goods,  moneys  and  chattels,  and  all  kinds  of 
estate  which  may  be  devised,  or  bequeathed,  or  given  to 
them." 

This  is  a  foreign  corporation,  and  it  has  been  decided, 
[Bank  of  Augusta  vs.  Earle,  13  Peters  R.,  519;  s.  c.  Deci- 
sions of  Supreme  Court  United  States,  277,)  that  though  the 
corporation  of  one  Slate  may  sue  in  another,  it  can  make  no 
contracts,  nor  enforce  any  liability  in  any  State  which  is  not 
within  the  terms  of  its  charter;  nor  any  of  those  which  are 
against  the  laws  of  that  other  Slate.  Chancellor  Kent  in- 
forms us,  (2  Kent  Com.,  2S3,)  that  the  English  statutes  of 
mortmain  are  in  force  in  Pennsylvania,  so  far  as  they  are 
applicable  to  her  political  condition — so  held  by  her  Courts, 
which  declared,  that  in  virtue  of  them,  "all  conveyances  by 
deed  or  will,  of  lands,  tenements  or  hereditaments,  made  to  a 


APPEALS  Ix\  EQUITY.  181 

Coluiiil)ia,  November  and  December,  1859. 

body  corporate,  or  for  the  use  of  a  body  corporate,  were  void, 
unless  sanctioned  by  charter  or  Act  of  Assembly." 

I  have  not  access  to  the  authority  cited  by  this  eminent 
commentator,  so  as  to  discover  whether  in  the  statutes 
intended  to  be  included  is  that  of  nth  George  II,  nor  is  it 
necessary  to  know;  for  in  the  charter  of  this  corporation 
there  is  the  very  license  and  privilege  required  by  tiie  law  of 
Pennsylvania  as  expounded  by  her  Judges.  Nor  shall  I 
enquire  here,  whether  the  law  of  Pennsylvania,  whose  office, 
so  far  as  mortmain  is  concerned,  would  seem  to  be  to  protect 
her  own  lands  from  improper  alienations,  would  be  offended 
by  an  alienation  in  mortmain,  in  another  State,  of  lands  lying 
in  that  other  State. 

The  true  inquiry  for  me  is,  is  it  an  offence  against  our  owu 
statute,  which  prohibits  devises  of  lands  to  bodies  corporate, 
for  the  testator,  not  to  devise  his  lands  to  them,  but  to  direct 
them  to  be  sold,  and  bequeath  the  proceeds  to  snch  body; — a 
body,  by  the  way,  expressly  authorized   to  receive  the  legacy. 

It  appears  to  me  impossible  to  deduce  from  any  of  the 
statutes  anterior  to  that  of  9th  George  the  Second,  or  from 
any  decisions  made  upon  them,  a  legal  conclusion,  which, 
applied  to  our  statute  of  1734,  would  make  it  an  offence  to 
raise  money  by  the  sale  of  lands  to  be  given,  as  money,  to  a 
corporation,  either  domestic  or  foreign.  That  statute  is  not  of 
force  here,  and  how  then  is  it,  or  any  decision  upon  it,  to  be 
applied  to  this  case  ? 

Curtis  vs.  Ihilton,  14  Ves.,  541,  referred  to  in  the  argu- 
ment, if  I  understand  the  case,  which  is  obscurely  stated,  was 
a  case  where  money  was  to  be  raised  from  sale  of  lands, 
and,  in  connection  with  other  |it>rsonalty,  was  to  be  /c//V/  out 
iu  other  hinfls  for  the  support  of  a  Scottish  charity,  and  so 
expressly  within  the  statute  of  9  Cieorge  II,  under  which  the 
adjudication  was  made.  The  master  of  the  rolls,  in  his 
observations,  says  it  is  s(Mtled  by  construction,  though  the 
statute  eontains  no  express  prohibition  against  the  beqiu'st  of 
money  arising  from  sale  of  real  estate,  for  charitable  pur- 


182  APPEALS  IN  EaUITY. 

American  Bible  Sociely  vs.  Noble. 

poses  ;  that  such  a  bequest  is  within  the  spirit  and  meaning 
of  the  law.  I  have  not  been  referred  to  the  current  of 
authority,  and  cannot  discover  it.  But  it  is  enough  for  this 
case  that  the  case  of  Cur/is  vs.  Hutton  was  decided  on  the 
statute  of  George,  wliich  is  not  of  force  here.  It  is  not  said 
any  where,  so  far  as  I  can  discover,  that  such  a  bequest 
would  have  been  void  as  an  offence  against  any  other  of  the 
statutes,  at  all  resembling  our  statute  of  1734.  If  it  would 
have  offended  them — if  the  law  was  as  now  contended  for, 
upon  the  other  statutes,  where  was  the  necessity  of  enacting 
that  of  George  II  ?  I  would  ask,  under  our  own  statute, 
which  merely  prohibits  the  giving  the  land  to  a  body  corpo- 
rate, wliat  offence  is  created  by  a  provision  that  it  be  sold 
and  go  to  others?  Whatever  objection  may  exist  to  a  corpo- 
ration holding  lands,  here  or  elsewhere,  is  not  the  objection 
obviated  by  a  disposition  which  carries  them  to  the  posses- 
sion of  others,  to  be  lield  by  them  upon  the  same  terms  as 
apply  to  all  the  other  lands  in  the  State  ?  'i'here  was  a 
minute  objection  raised  to  the  title  given  in  the  will  to  tliis 
corporation.  It  differs  slightly  from  that  by  which  it  was 
incorporated.  But  this  error  will  not  vitiate  the  bequest. 
(Angel  &  A.,  178.) 

And  so  I  conclude  that  this  corporation  is  entitled  to  the 
bequests  made  to  it.  The  American  Bible  Society  takes  its 
charter  from  New  York,  and  is  empowered  "  to  hold,  pur- 
chase and  convey  real  and  personal  estate"  to  produce "  a 
net  income  not  exceeding  $5,000  annually." 

The  English  statutes  of  mortmain  are  not  of  force  in  that 
State;  and  no  impediment  exists  except  that  by  their  statute 
of  wills,  as  I  understand,  no*  lands  can  be  devised  to  a  corpo- 
ration ;  and  by  revised  statutes,  it  can  only  take  what  it  is 
specially  authorized  by  its  charter  to  take.  This  corporation 
is  authorized  to  purchase  real  estate  ;  but  in  McCarter  vs. 
The  Orphan  Asylum  Society,  (9  Cowen,  437,) — a  New  York 
case — and  we  are  bound  by  the  New  York  decisions,  as  bind- 
ing authority,  as  to  the  rights  of  her  corporations  under  her 


APPEALS  IN  EQUITY.  183 

Coliiiiil)ia,  November  and  December,  lbr)9. 

laws — it  is  said  to  have  been  held  that  the  word  purchase 
did  not  inchide  a  devise,  ahhongh  devise  falls  under  title  by 
purchase.  The  American  Bible  Society  may  bui/  and  may 
hold  and  convey  lands.  But  they  can  take  no  direct  devise  of 
real  estate.  They  niay  take  personalty.  But  in  the  Theo- 
logical Scininary  of  Auburn  vs.  Childs,  (4  Paige,  419,)  it  was 
held  that  prior  to  revised  statutes  a  pecuniary  legacy  payable 
out  of  the  proceeds  of  real  estate,  which  the  executors  were 
directed  to  sell,  was  valid,  although  the  corporation  was  not 
authorized  by  its  charter  to  take  real  estate  by  devise ;  and 
the  question  is  seriously  put,  with  a  leaning  to  the  aflirma- 
tive,  whether  such  a  bequest  is  not  good  even  after  the  revised 
statutes. 

Chancellor  Walworth  says:  "I  am  not  prepared  to  say 
that  the  devise  of  a  power  in  trust  to  executors  to  sell  lands 
for  the  payment  of  a  legacy,  charged  thereon,  in  favor  of 
a  corporation,  would  be  invalid,  even  under  the  revised 
statutes."  "  But  I  am  satislied  that,  at  the  time  tliis  will  was 
niade,  and  at  the  death  of  the  testator,  in  1S26,  he  had  the 
legal  right  to  devise  his  real  estate  in  trust  for  a  corporation  ; 
and  that  the  devise  of  such  estate  to  his  executors  to  sell  the 
same  for  the  payment  of  this  and  other  legacies  charged 
thereon,  was  valid.  The  feudal  policy  having  changed  the 
ancient  common  law  of  England,  and  deprived  the  owners 
of  lands  of  the  power  of  devising  the  same  at  their  deaths, 
the  statute  of  wills  was  an  enabling  statute;  and  the  excep- 
tion as  \o  corporations  was  strictly  only  an  exception,  and  not 
a  prohibition.  The  decision  of  this  Court  in  the  Orphan 
House  Asylum  Society  vs.  McCarler,  is  conclusive  on  this 
question.  Allhough  the  decision  of  Chancellor  Jones,  in 
that  case,  was  reversed,  it  was  solely  on  the  ground  that  the 
devise  to  the  corporation  was  direct,  and  not  to  the  executors 
in  trust.  Indeed,  Mr.  Justice  VVoodworth,  who  delivered  the 
opinion  of  the  majority  of  the  Court,  *  *  admits  that  if  the 
legal  estate  had  remained  in  the  executors  in  trust  for  the 
corporation,  and  they  had  refused  to  pay  over  its  portion  of 


184  APPEALS  IN  EaUITY. 

American  Bible  Society  vs.  Noble. 

the  proceeds  of  the  property  on  a  sale  thereof,  the  complain- 
ant would  have  been  entitled  to  relief. 

''The  cases  referred  to  by  the  defendant's  counsel,"  he 
proceeds,  "are  founded  upon  the  prohibitions  of  the  statute 
of  9  George  II,  ch.  36,  (l  Evans  statute  324,)  under  which 
statute,  although  it  contains  no  express  words  prohibiting  a 
bequest  of  money  to  be  produced  by  the  sale  of  lands,  for 
cliaritable  purposes,  it  has  been  settled  by  construction  that 
such  a  bequest  is  void,  as  being  within  tlie  spirit  and  mean- 
ing of  the  Act — (14  Ves.  Rep.,  541.)" 

I  have  no  better  indication  of  the  law  of  New  York  under 
the  revised  statutes  than  the  intimation  of  Chancellor  Wal- 
worth in  this  extract.  I  have  not  access  to  the  judgment  of 
Chancellor  Jones,  referred  to.  But  as  both  these  are  favorable 
to  the  view  I  entertain  myself,  I  conclude  that  this  corpora- 
tion is  entitled  to  its  legacy.  It  will  be  observed  that  I  have 
left  untouched  the  fact  that  the  testator  has  directed  a  sale  out 
and  out  of  realty  and  personalty  indefinitely,  which,  of  itself, 
equitably  impresses  the  character  of  personal  estate  on  the 
proceeds. 

The  last  charter  is  that  of  the  American  Tract  Society, 
which  is  also  from  New  York.  It  is  also  authorized  to"  hold, 
purchase  and  convey  such  real  and  personal  estate  as  the 
purposes  of  the  corporation  shall  require,  not  exceeding  the 
amount  limited  in  its  charter,"  the  net  income  of  which 
"shall  not  exceed  $5,000  annually." 

This  corporation  stands  upon  similar  legal  principles  with 
the  American  Bible  Society,  and  is  entitled  to  its  legacy. 

It  is  ordered,  that  the  accounts  in  the  case  be  referred  to  the 
commissioner,  and  that  he  state  and  report  them. 

That  tlie  commissioner  be  authorized  to  make  sale,  upon 
such  credits  as  he  may  fix,  (not  ditfering  from  such  as  are 
usual  in  such  cases,)  of  such  portions  of  the  estate,  real  or 
personal,  as  according  to  the  foregoing  opinion  are  subject  to 
sale,  and  yet  remain  unsold, giving  at  least  three  weeks'  public 
notice  thereof  in  the  Abbeville  newspapers,  and  in  some  one 


APPEALS  IN  EaUITY.  185 


Columbia,  Novenil)er  and  December,  lb09. 


of  the  Charleston  newspapers,  and  requiring  bond,  with  at 
least  two  good  sureties,  and  a  mortgage  of  the  premises, 
wliere  land  is  sold,  to  secure  all  sums  of  and  over  twenty- 
dollars,  and  cash  for  all  sums  under  that  amount. 

And  let  the  parties  have  leave  to  apply  for  any  further 
necessary  order. 

Tlie  costs  to  come  out  of  the  estate. 

The  heirs-at-law  appealed  on  the  grounds: 

1.  Because,  the  will  of  John  B.  Bull,  properly  construed, 
does  not  dispose  of  the  plantation  called  "  Berry  Hill,"  which, 
having  been  purchased  by  the  testator  in  his  lifetime,  does  not 
pass  under  the  words  "Of  the  estate  of  my  much  respected 
and  greatly  lamented  brother,  Gen.  William  A.  Bull,  deceased, 
&c." 

2.  Because,  there  is  no  general  residuary  clause  in  John 
B.  Bull's  will,  sufficient  to  carry  any  part  of  his  estate  not 
covered  by  the  direct  gifts,  all  the  directions  in  the  will  after 
the  words  "  of  the  estate,"  &c.,  having  manifest  reference  to 
that  property  and  no  other. 

3.  Because,  the  post  nati  children  born  of  the  negroes 
given  to  Mrs.  Sarah  Bull,  in  the  second  clause  of  the  will, 
and  the  provisions,  crops,  ancJ  all  articles  at  Little  River,  not 
mentioned  in  said  clause,  are  intestate — the  terms  of  the 
direct  bequest  being  limited  to  the  negroes  in  esse  at  the  time 
tlie  will  was  executed,  and  there  being  no  general  residuary 
clause  sufficient  to  dispose  of  said  negroes,  and  other  property. 

4.  Because,  the  exception  in  the  Act  of  1734  constitutes  s 
positive  prohibition  against  devisins;  any  estate  or  interest  in 
/and  io  bodies  politic  or  corporate;  and  the  device  to  defeat 
the  law  and  accomplish  the  same  purpose  indirectly — by 
ordering  the  lands  sold,  and  proceeds  given — should  have 
been  declared  void,  as  opposed  to  the  spirit  of  the  express 
law,  as  well  as  to  the  principles  of  equity  and  sound  morality. 

.5.  l^ecatise,  the  charter  of  the  three  foreign  rorporations — 
being  laws  of  foreign  Stales — cannot  repeal  the  South  Carolina 


180  APPEALS  IN  EaUlTY. 

American  Bible  Soc-iety  vs.  Noble. 

prohibition,  nor  enable  said  corporations  to  take  anything 
from  Sonth  Carolina  not  allowed  by  the  laws  of  South  Caro- 
lina. Charters  of  foreign  corporations  cannot  give  license  to 
dispense  with  our  law  in  regard  to  them. 

6.  But  if  otherwise,  then  neither  the  Bible  Society  nor  the 
Tract  Society,  chartered  by  the  State  of  New  York,  can  take 
any  part  of  the  provision  made  for  them,  even  according  the 
Revised  Statutes  of  that  State,  which  declare  that  corporations 
shall  exercise  no  powers  which  are  not  expressly  given.  The 
right  to  "  purchase  and  hold"  does  not  necessarily  include 
the  right  to  take  by  "  devise,^"  or  even  "  bequest." 

7.  The  trustees  of  the  "Presbyterian  Board  of  Publication," 
chartered  by  the  State  of  Pennsylvania  in  1S47,  cannot  take 
the  ybi/?V/i  claimed  by  them  under  Bull's  will,  executed  in 
1843 — because  the  gift,  made  before  the  corporation  had  any 
existence,  is  not  to  the  corporation  chartered  or  in  the  terms 
of  the  charter;  and  also,  because  of  the  statutes  of  mortmain, 
which  are  of  force  in  that  State. 

8.  The  Theological  Seminary  cannot  take  the  one-fourth 
of  the  lands  intended  for  them,  because  its  charter,  although 
a  license  to  the  extent  it  goes,  does  not  conflict  with  the  Act 
of  1734,  or  expressly  confer  the  right  to  take  by  devise. 

9.  Because,  it  is  respectfully  but  earnestly  submitted  that 
there  is  no  law  or  principle  of  equity  whicli  requires  the 
Court  to  decree  the  whole  of  this  large  estate  away  from 
the  heirs-at-law,  and  give  it  to  irresponsible,  soulless  |)olitical 
corporations,  some  of  which  are  foreign  to  our  jurisdiction, 
alien  to  our  policy,  and  under  the  control  of  persons,  and  the 
exclusive  government  of  States  inimical  to  our  institutions. 

James  Morrow,  one  of  the  defendants,  appealed  on  the 
grounds : 

1.  Because  his  Honor  held  that  the  negroes  born  after  the 
making  of  the  will,  are  not  embraced  in  the  bequest  to  Sarah 
Bull,  in  the  second  or  other  clause  of  said  will. 

2.  Because  said  slaves,  if  not  embraced  in  said  bequest,  are 


APPEALS  IN  EaUITY.  187 

Columbia,  Novemljer  and  December,  1809. 

intestate;  and  two-thirds  of  them,  or  their  value,  should  have 
been  declared  the  right  of  James  Morrow. 

3.  Because  liis  Honor  should  have  held  the  bequest  of 
$5,000  to  James  Morrow,  his  absolute  property;  or  declared 
fully  what  his  estate  was;  with  interest  on  the  same  from  tes- 
tator's death. 

4.  Because  tiie  pleadings  made  the  question,  whether  the 
executor  should  pay  to  James  Morrow,  the  debt  acknowledged 
by  the  testator,  in  his  will,  as  due  the  estate  of  David  Mor- 
row, deceased  ;  which  the  executor  declined  to  pay  without 
instruction,  and  was  claimed  by  the  defendant,  James  Mor- 
row. 

The  executor  appealed  from  so  much  of  the  decree  as 
orders  the  commissioner  in  equity  to  sell  Berry  Hill,  on  the 
ground  : 

Because  the  will  directs  the  sale  to  be  made  by  the  execu- 
tor, and  it  is  his  riglit  and  privilege  to  make  it. 

McGowaji,  for  the  heirs-at-law,  cited  on  first  ground  :  Law- 
ton  vs.  Hunt,  4  Rich,  Eq.,  247  ;  JVillis  vs.  Soyers,  4  Mad., 
209;  8  T.  R.,  375;  4  Maul.  &  Sel.,  550;  Gilb.  on  Dev.,  S4;  1 
Jarm.  on  Wills,  720  ;  on  third  ground  :  1  Jarm.  on  Wills,  693; 
Buist  vs.  Dawes,  3  Rich.  Eq.,  281  ;  Tydiman  vs.  Rose,  Rich. 
Eq.  Cases,  294;  1  Rop.  on  Leg.,  188;  on  fourth  and  following 
grounds:  Act  17S9,  5  Stat.,  110;  Act  1731,  3  Stat.,  382;  2 
Brev.  Dig.,  335:  Hill  on  Trustees,  1,  65,84,196,691,705; 
10  Ves.,  540;  9  Ves.,  399;  2  Vern.,  387;  Brown  vs.  Lei^fi,  1 
Ves.,  501,  note;  3  Meriv.,  19;  2  Story  Ecj.,  §  1183;  Foun- 
tain vs.  Ravenel,  17  How.,  369;  Attorney  General  vs.  Christ's 
Hospital,  4  Beav.,  74;  2  Keen.,  150;  Mayor  of  S.  B.  vs. 
Attorney  General,  5  H.  L.  C,  1  ;  Haskel  vs.  Rowe,  3  Brev., 
242  ;  Tfiompson  vs.  Gaillard,  3  Rich.,  418;  2  Ves.,  179;  Sug. 
on  Pow.,  115;  Burnett  vs.  Noble,  10  Rich.,  530;  I  VVms.  on 
Ex'ors,  554  ;  White  and  Tudor,  L.  C,  594  ;  Dud.  Eq.,  212  ; 
Lindsay  vs.  Pleasant,  4  I  red.   E(].,  3'i\  ;  Craig  vs.  Lester  ^  3 


188  APPEALS  IN  EQUITY. 

American  Bible  Society  vs.  Noble. 

Wheat.,  560;  Baptist  vs.  Hart,  4  Wheat., -10;  1  Bro.  Ch., 
503;  2  Fonb.,  212,  note;  Amb.,  20;  Maggs  vs.  Hodge,  2  Ves., 
52;  Shelf,  on  Mortm.,  87;  Grant,  on  Corp.,  128;  Ang.  &  Ames 
on  Corp.,  168  ;  1  M.  &  K.,  368,  note;  Hobart,  136  ;  Porter's 
Case,  1  Coke,  22;  4  Kent,  250;  4  Paige,  41.9;  Ang.  &  Ames 
on  Corp.,  138;  IVilbank  vs.  Martin,  2  Harrington,  18;  Roper 
vs.  Radcliff,  9  Mod.,  167;  De  Costs  vs.  Diipass,  Amb.,  228; 
Woodman  vs.  Woodruff,  Amb.,  636  ;  9  Ves.,  399  ;  Dwar.  on 
Stat.,  31  ;  2  Rev.  Stat.  N.  Y.,  2  ;  1  Rev.  Stat.  N.  V^.,  720; 
Watson  vs.  Child,  9  Rich.  Eq.,  129. 

Fair,  for  JMorrow,  cited  :  Garret  vs.  Garret,  2  Sirob.  Eq., 
272  ;  Roberts  vs.  Leslie,  9  Rich.  Eq.,  35;  Jasper  vs.  Maxwell, 

1  Dev.  Eq.,  357  ;  Perry  vs.  Logan,  5  Rich.  Eq.,  215;  Matfiis 
vs.  Griffin,  8  Rich.  Eq.,  79. 

Noble,  for  the  execntor,  cited  :  Osborn  vs.  Black,  Sp.  Eq., 
435;   Thompson  vs.  Palmer,  2   Rich.  Eq.,  36  ;   Gist  vs.  Gist, 

2  McC.  Ch.,  474;  2  Story  Eq.,  §  1060;  Crossland  vs.  Mur- 
dock,  4  McC,  218;  1  Wms.  on  Ex'ors,  451;  2  Wtns.  on 
Ex'ors,  687  ;  Drayton  vs.  Grimke,  Bail.  Eq.,  392  ;  5  Stat.,  15  ; 
Britton  vs.  Lewis,  8  Rich.  Eq.,  271  ;  Sug.  on  Pow.,  167,  172. 

Perrin,  for  corporations,  cited  :  Chapman  vs.  Brown,  3 
Bnr.,  1634;  Gore  vs.  Langdon,  2  B.  &  Ad.,  680;  22  Eng. 
C.  L.  R.,  285;  Bodenham  vs.  Pritchard,  S  Eng.  C.  L.  R.,  150; 
Goodtitle  vs.  Southern,  1  M.  &  S.,  299  ;  An.  &  A.  on  Corp., 
134;  1  Kyd  on  Corp.,  104;  Bac.  Ab.  Corp.,  F,  2 ;  2  Lord 
Ray.,  1532  ;  1  Sira.,  612  ;  2  Kent,  285,  n  ;  Jiw^usta  vs.  Earle, 
13  Pet.,  519  ;  1  Bro.  C.  C,  497  ;  Dougald  vs.  Ball,  2  P.  W., 
320 ;  Trelawney  vs.  Booth,  2  Atk.,  307 ;  Craig  vs.  Leslie,  3 
Wheat.,  564 ;  fastis  vs.  Brown,  6  Paige,  448  ;  Perry  vs. 
Logan,  5  Rich.  Eq.,  202  ;  Attorney  General  vs.  Jolly,  1  Rich. 
Eq.,  99;  Gibson  vs.  McCall,  1  Rich.,  174;  Shelf,  on  Mortm., 
73;  Gerard  vs.  Vidal,  2  How.,  127;  3  Pet.,  99;  7  Serg.  & 
Raw.,  320:  2  Kent,  283;   1  Watts,  218;  Perd.  Dig.,  350. 


APPEALS  IN  EQUITY.  189 


Columbia,  November  and  December,  1859. 


McCrady,  for  American  Tract  Society: 

To  purchase  lands  and  hold  them  for  the  benefit  of  them- 
selves and  their  successors,  (I  Black.  Com.,  475,  47S,)  was 
incident  to  every  corporation  at  common  law.  It  is  not, 
therefore,  any  incapacity  in  the  corporation  to  take  and  hold 
which  can  prevent  the  de'vise,  but  some  disability,  created 
by  our  own  statutes,  must  be  shown.  Mortmain  Acts  did 
not  artect  the  colonies,  2  Merivale,  143,  160;  attorney  Gen- 
eral vs.  Stewart.  This  disability,  it  is  said,  is  to  be  found  in 
the  A.  A.  1734,  entitled  an  Act  for  making  more  effectual 
and  for  making  valid  all  former  wills  in  this  province,  &c., sec. 
2d,  3  Stat,  at  Large,  p.  341,  3S2,  in  which  "  bodys  politick  and 
corporate  are  excepted  from  being  devisees."  That  is,  it  is 
a  disability  in  the  devisor,  and  not  the  incapacity  or  disabil- 
ity of  the  corporations.  If  the  power,  liberty,  or  privilege, 
to  devise  lands  in  this  State  were  derived  entirely  from  the 
Act  of  1734,  the  exception  would  certainly  make  any  devise 
to  corporations  void.  But  if  this  power,  liberty,  or  privilege, 
need  not  be  derived  from  them,  it  need  not  be  subject  to  the 
exception.  I,  therefore,  will  endeavor  to  maintain  these  two 
propositions: 

1.  That  lands  in  this  province  were,  long  before  the  pas- 
sage of    the  Act  of    1734,  devisable   without  any  restraint. 

2.  That  this  Act  did  not  curtail  or  restrict  the  right  of 
devise  before  enjoyed  by  the  citizen. 

As  to  the  first ;  that  lands  were  devisable  before  the  Act 
of  1734.  We  go  back  to  what  must  be  considered  by  us  as 
the  fountain  head  of  all  property  and  right  of  property  in  our 
soil,  that  is,  to  the  charters  granted  to  the  lords  proprietors, 
dated  respecHvely  15th  March,  1663,  and  30th  June,  1665. 
By  the  fourth  clause  or  section  of  the  first,  (1  Stat,  at  Large, 
pp.  22,  23,)  and  third  of  tlie  second,  (lb.,  31,  33,)  the  whole 
territory  was  granted  to  the  proprietors  and  their  heirs  by 
their  king,  "to  be  holden  of  us,  our  heirs  and  successors  as 
of  our  manor  of  East  Greenwich  in  Kent,  in  free  and  com- 
mon socage,  and  not  in  capile  or  by  knight's  service."     We 


190  APPEALS  IN  EQUITY. 

American  Bible  Society  vs.  Noble. 

do  not  positively  know  how  this  manor  of  East  Greenwich 
was  held,  but  as  it  was  in  Kent,  we  may  fairly  presume  it 
was  ga^'elkind.  "All  the  lands  in  Kent  are  presumed  to  be 
in  gavelkind,  because  it  is  morally  impossible  now  to  sliow 
to  a  certainty  what  lands  were  disgavelled."  Bac.  Abr.,  2 
vol.,  tit..  Gavelkind,  B,  marginal  note.  "The  lands  in  Kent, 
generally,  are  of  the  nature  of  gavelkind,  which  custom  there 
is  like  the  common  law  elsewhere."  Com.  Dig.,  4  vol.,  title, 
Gavelkind,  H. 

If  this  holding  intended  by  the  charter  was  in  the  nature 
of  gavelkind,  then  the  lands  in  this  province  were  devisable 
by  the  grantees,  the  lords  proprietors;  for,  says  Lord  Bacon, 
"all  gavelkind  land  is  devisable,  for  the  allodial  property 
doth  follow  the  rules  of  the  civil  law,  which  permits  any 
person  to  make  his  will  and  to  dispose  of  his  estate;  and 
this  notion  the  clergy  seem  to  have  brought  over  unto  all 
those  allodial  possessions,  and  the  custom  hath  continued 
ever  since."     Bac.  Abr.,  2  vol.,  title.  Gavelkind,  A. 

So  Gilbert  on  Devisees,  p.  84:  "For  the  people  of  Kent, 
where  the  custom  of  gavelkind  most  prevails,  happily  secured 
their  land  from  any  innovation  of  the  Conqueror,  so  that 
after  the  conquest,  they  still  continued  free,  and  not  subject 
to  the  feudal  duties,  &c.;  therefore,  that  people  still  contin- 
ued their  old  power  and  custom  to  dispose  of  their  lands 
according  to  the  natural  notion  of  property,  by  loill  or  alien- 
ation." And  so  it  was  decided  in  Lminder  vs.  Brookes,  Cro. 
Car.,  561. 

The  mere  fact  that  the  manor  of  Greenwich  was  in  Kent, 
is,  therefore,  almost  conclusive,  that  the  grant  enabled  the 
grantees,  the  lords  proprietors,  to  devise  without  restriction, 
and  that  they  so  took  and  held  all  the  lands  of  the  prov- 
ince. In  fact  the  statute  of  Frauds,  sec.  5,  recognizes  the 
power  of  devise  as  a  Kentish  custom,  and  not  as  gavelkind — 
"according  to  the  custom  of  Kent,"  is  the  language — and 
thus  we  have,  as  it  were,  a  declaration  of  the  meaning  of  the 


APPEALS  IN  EQUITY.  191 

Columbia,  November  and  December,  ISSO. 

charter,  to  give  the  power  to  devise,  by  the  grantor  himself, 
as  well  as  by  his  parliament. 

But  this  is  pnt  beyond  question  by  the  provision  of  the 
seventh  clause  or  section  of  both  charters,  1  Stat.  pp.  25 
and  35,  that  "  all  the  subjects  and  liege  people"  of  the 
king,  transported  to  the  province,  should  be  considered  still 
liege,  faithful  people,  and  may  inherit  or  otherwise  purchase 
and  receive,  take,  hold,  and  buy,  and  possess  any  lands,  tene- 
ments, or  hereditaments,  within  the  said  places,  and  them 
may  occupy  and  enjoy,  sell,  alien  and  bequeath.  Both  the 
proprietors  and  their  grantees  then  took  the  lands  in  this  prov- 
ince as  lands  devisable,  and  devisable  according  to  ancient, 
lawful  customs  of  England,  before  the  statutes  of  32  and  34 
Henry  VIII. 

In  addition  to  this,  we  have  very  conclusive  proof  that  it 
was  so  understood  by  the  people  of  the  province  themselves, 
in  the  remarkable  and  otherwise  unaccountable  omission  to 
adopt  either  of  the  statutes  of  Henry  VIII,  authorizing 
devises,  when  in  1712  they  adopted  so  many  other  statutes, 
together  with  the  criminal  law,  and  intended  to  frame  their 
code;  and  that  they  had  no  fear  of  corporations  appears  from 
the  fact,  that  none  of  the  statutes  of  mortmain  were  ever 
made  of  force. 

We  are  then  next  to  inquire  whether  this  right  of  devise, 
coeval  with  the  right  of  property,  was  at  any  time  before  the 
Act  of  1731,  abolished  or  restricted.  Nothing  can  be  sug- 
gested as  affording  any  possible  ground  for  such  a  supposi- 
tion, unless,  perhaps,  the  adoption  of  the  common  law,  or 
the  surrender  of  ihe  charters  by  the  proprietors;  neither,  how- 
ever, could  have  had  such  an  effect. 

1.  As  to  the  adoption  of  the  common  law.  It  would  be 
clearly  against  the  intent  of  the  statute,  which,  it  is  to  be 
observed,  cautiously  adopted  only  such  parts  of  the  common 
law  as  were  not  "inconsistent  with  the  particular  constitu- 
tions, customs,  and   laws  of  this    province."     But  even  with- 


192  ■  APPEALS  IN  EaUlTY. 

American  Bil)le  Society  vs.  Noble. 

out  this  cautious  limitation,  the  Act  of  1712  could  not. 
cousisteutly  with  decisions  in  England,  then  not  long  before 
made,  have  been  construed  to  have  such  an  effect. 

In  the  case  of  Wueman  vs.  Cotton,  decided  in  1663, 
Hardres  Rep.,  325,  see  Thos.  Raymond,  59,  75  and  76, 
and  also  in  Bac.  Abr.,  2d  vol.,  Tit.,  Gavelkind,  B,  the  ques- 
tion was,  whether  certain  lands  in  Kent,  disgavelled  by 
certain  Acts  of  Parliament  in  Henry  Vlllth's  time,  "  to  all 
intents,  constructions  and  purposes  whatsoever;  and  that 
they  should  descend  as  lands  at  common  law,  any  custom  to 
the  contrary  notwithstanding,"  thereby  lost  their  devisability, 
and  it  was  resolved  that  notwithstanding  the  generality  of  the 
language,  the  said  lands  lost  only  their  partibility,  and  might 
still  be  devised.  The  case  was  made  expressly  to  try  the 
question  on  a  wager  whether  the  lands  could  be  devised,  was 
carefully  considered,  and  is  also  reported  in  Lev.  79,  1  Sid. 
77,  135,  and  1  Keble,  288,  372,  492,  505. 

The  adoption  of  the  common  law,  then,  (if  the  manor  of 
Greenwich  had  not  been  disgavelled  in  this  way  prior  to  the 
cliarters,)  could  only  have  changed  the  descent. 

Then,  as  to  the  surrender  of  the  lords  proprietors  to  King 
George  II.  Did  that  destroy  the  custom  of  devise,  and  deprive 
our  lands  of  their  devisability?  We  have  never  seen  any 
copy  of  tiie  surrenders,  but  the  Act  of  2  George  II,  ch.  34, 
A.  D.,  1729,  entitled,  an  Act  for  establishing  an  agreement 
with  seven  of  the  lords  proprietors  of  Carolina,  for  the  sur- 
render of  their  title  and  interest  in  that  province,  to  his 
Majesty,  is  to  be  found  in  1  Stat,  p.  60,  in  which  the 
agreement  is  recited  and  the  confirmation  enacted.  The 
patents  or  charters  of  Charles  II  are  both  recited  at  length  as 
to  the  giant  of  the  lands  as  already  quoted,  and  the  title  and 
interest  of  the  proprietors  thus  described  was  to  be  surren- 
dered ;  but  "all  such  tracts  of  land,  tenements,  and  heredita- 
ments as  have  been  at  any  time  before  1  January,  1727, 
granted  or  conveyed  by,  or  comprised  in  any  grants,  deeds, 
instruments  or  conveyances,  under  the  common  seal  of  the 


APPEALS  IN  EaUITY.  I9:i 

Columbia,  November  and  December,  1859. 

said  lords  proprietors,  cither  in  England  or  in  tlio  provinces 
aforesaid,"  were  expressly  excepted,  (lb.,  p.  G5,)  so  that  as  to 
lands  irranted  before  1  January,  1727,  this  surrender  had  no 
etiect ;  and  if  the  lands  after  granted  by  the  king  were  not 
devisable,  there  certainly  would  have  been  great  confusion, 
and  we  should  have  to  look  to  the  dates  of  the  grants  to 
resolve  the  question.  Possibly  a  vague  apprehension  of  this 
might  have  induced  the  passage  of  the  Act  of  1734.  ]Jut  it 
must  be  observed  that  tliis  surrender  made  to  the  king  was  of 
that  estate  or  title  which  the  proprietors  held,  that  is,  as  of 
lands  in  Kent,  and  such  lands  would  not  have  lost  their 
qualities  by  such  a  surrender,  2  Danv.  Abr.,  441.  If  gavel- 
kind lands  are  held  in  socage,  and  the  tenure  is  after  changed 
into  knight's  service,  yet  the  custom  is  not  altered,  for  that 
goes  witfj  the  lajid  and  not  with  the  tenure.  See  Lushhigion 
vs.  Slandorff,  5  Bos.  &  Pul.,  506,  72S.  Com.  Dig.,  4th  vol., 
Gavelkind,  533.  (A.)  So,  if  it  descend  to  the  king,  though 
it  be  privileged  in  the  hands  of  the  king,  the  custom  is  not 
thereby  destroyed.....  So,  if  the  king  be  seized  of  lands 
in  nature  of  gavelkind,  and  dies  having  several  sons,  the 
whole  descends  to  the  king,  his  successor,  and  the  younger 
sons  shall  have  no  part,  for  the  custom  is  suspended  in  the 
hands  of  the  king.  Upon  these  authorities  we  are  justified 
in  maintaining  that  although  the  custom  might  have  been 
suspended  while  the  lands  were  in  the  king,  it  was  not  de- 
stroyed ;  and  that  upon  being  granted  to  private  individuals, 
the  right  of  devise  went  with  the  land,  and  that,  therefore, 
that  all  lands,  whether  granted  by  the  proprietors  or  by  the 
king,  were  devisable  previous  to  the  A.  A.  1734,  and  up  to  the 
time  of  the  passage  of  that  Act,  and  if  so,  then  we  proceed 
to  our  second  proposition. 

2.  That  the  Act  of  1734,  did  not  take  away  this  right  of 
the  citizen  and  quality  of  the  land.  It  is  at  the  worst  no 
more  than  the  statute  of  32  Henry  VIII,  which  has  the  same 
exception,  but  it  has  constajjtly  been  held  in  England,  that 
wherever  lands  were  devisable  by  custom  before  tlie  statute 
14 


194  APPEALS  IN  EaUlTY. 

American  Bible  Society  vs.  Noble. 

of  Henry,  they  were  not  affected  by  it.  Gilbert,  in  consider- 
ing what  circumstances  are  necessary  to  a  will,  says  on 
devises,  p.  83,  84,  that  lands  of  gavelkind  tenure  in  Kent, 
"  are  not  subject  to  the  circumstances  required  by  that  statute 
(32  Henry  VHI)  because  they  were  devisable  before."  And 
in  the  Butler  &  Baker's  case,  3  Rep.  35,  a,  4,  it  is  said,  and 
as  to  the  case  in  Dyer,  155,  that  if  lands  in  London,  or  lands 
Vi'hich  were  devisable  by  custom,  are  held  in  capite,  yet  the 
whole  may  be  devised.  To  that  it  was  answered,  that  was 
not  by  force  of  the  statute,  but  because  the  lands  were  devis- 
able by  custom  before  the  statute,  and  the  statute  is  in  the 
affirmative,  and  doth  not  take  away  any  custom.  So  T..ord 
Coke  says  again.  For  an  affirmative  act  doth  not  take  away 
a  custom  to  devise  lands,  as  it  hath  often  been  adjudged.  Co. 
Litt.,  115,  a. 

And  this  has  been  allowed  even  against  the  mortmain 
Acts  in  London.  Bac.  Abr.  (vol.  1,  Title,  Customs  of  Lon- 
don. A.)  By  the  custom  of  London,  a  freeman  or  citizen 
might,  even  before  the  statute  of  wills,  devise  iiis  lands  and 
tenements,  of  which  he  was  seized  in  fee  simple,  to  whom  he 
pleased,  and  may  at  this  time  devise  the  same  in  mortmain, 
notwithstanding  the  statutes  of  mortmain,  &c.  Here  we  have 
no  mortmain  Acts  to  prevent. 

But,  whatever  might  have  been  the  intent  or  the  effect  of 
the  Act  of  1734,  we  contend  that  the  Act  of  1789  was  in- 
tended to  remove  all  restrictions  from  the  power  of  devising 
except  those  of  form  imposed  by  tlie  statute  of  frauds,  and 
therein  re-enacted.  This  appears  from  the  fact  that  nothing 
is  said  about  the  devisees;  exceptions  ari;  made  as  to  those 
who  may  devise,  but  as  to  those  who  may  take,  the  statute  is 
silent,  and  as  there  is  nothing  to  restrict  the  devisor,  the  only 
question  is  as  to  the  capacity  of  the  devisee  to  take  at  com- 
mon law,  which  capacity  we  have  shewn,  corporations  have. 
And  this  enactment,  although  affirmative  only,  being  intended 
to  regulate  wills,  the  same  matter  as  the  Act  of  1734,  must 


APPEALS  IN  EaUITY.  195 

Columbia,  November  and  December,  1859. 

reppal  it,  as  the  exception   in  tlie  Act  of  1734  is  inconsistont 
with  the  iiniiinited  power  of  devise  given  in  the  Act  of  1789. 

So,  if  a  subsequent  Act  be  contrary  to  a  former,  in  matter, 
it  shall  be  a  repeal  of  the  former,  though  the  words  are  affir- 
mative. Com.  Dig.,  5  vol.,  foot  page  317,  Tit.,  Parliament, 
R.,  9,  a. 

Every  affirmative  statute  is  a  repeal,  by  implication,  of  a 
precedent  affirmative  statute,  so  far  as  it  is  contrary  thereto. 
For,  le^es  posteriores  prioi-es  abrogant.  Bac.  Abr.,  4  vol., 
Tit.,  Statute,  D.,  14. 

Then  we  have  the  uniform  practice  ever  since  the  Act  of 
1789,  in  favor  of  this  construction,  for  there  is  no  vestige  of 
a  doubt  of  the  power  to  devise  to  corporations,  or  of  the 
ability  of  corporations  to  take  under  a  devise,  to  be  found  in 
any  of  our  reports,  and  such  a  doubt  has  been  unknown  to 
the  bar,  as  I  verily  believe,  until  raised  in  this  case,  J>ut, 
if  this  be  trie  first  time  this  Act  comes  to  be  construed,  being 
a  statute  in  favor  of  public  right,  it  ought  to  be  construed 
liberally  to  carry  out  its  intent,  more  especially  as  those  feudal 
rights  which  were  sought  to  be  protected  by  the  restriction 
upon  devise,  were  never  of  force  in  this  State. 

Thomson^  for  Morrow,  cited  :  I  Rop.  on  Leg.,  248,  249,  257, 
260,  262,  268;  2  Rop.  on  Leg.,  1507,  1683;  1  Bro.  C.  C, 
482  ;  1  Jarm.  on  Wills,  277,  n.,  698  ;  Sayer  vs.  Sayer,  2  Vern., 
688;  2  Rop.  on  Leg.,  1475,  1476,  1478;  Rawlhii^s  vs.  Jen- 
7iiu£^s,  13  Ves.,  39  ;  ,]llen  vs.  Crossland,  2  Rich.  Eq.,  68. 

The  opinion  of  the  Court  was  delivered  by 

VVardlaw,  Ch.  The  circumstances  under  which  this 
opinion  is  prepared,  prevent  that  full  discussion  wjiich  the 
importance  of  the  interests  and  principles  involved  makes 
desirable,  and  enable  me  to  do  little  more  than  to  announce 
the  judgment  of  the  Court. 

We  are  all  agreed  that  the  direction  of  the  will  to  the  exe- 
cutors to  sell  the  whf)lc  estate,  applies  only  to  the  "  General 
Bull  estate,"  and  that  the  religious  societies  have  no  interest 


196  APPEALS  IN  EaUITY. 

American  Bible  Society  vs.  Noble. 

beyond  this  portion.  The  direction  to  sell  is  in  the  midst  of 
dispositions  relating  to  that  special  snbject,  and  it  is  a  forced 
constrnction  to  change  its  collocation  with  cognate  disposi- 
tions, and  make  it  applicable  to  tiie  whole  of  testator's  estafe. 
It  is  manifest,  from  a  carefnl  reading  of  the  will,  that  while 
the  testator  intended  to  dispose  of  his  whole  estate,  he  made 
very  different  dispositions  as  to  liie  two  parcels  of  it:  his 
estate  proper,  and  th^  "  General  Bull  estate."  The  former  he 
gives  to  his  wife,  and  the  latter  he  devotes  to  charity.  That 
he  should  make  the  proceeds  of  the  latter  liable  to  his  debts 
generally,  and  to  a  pecuniary  legacy  to  his  step-son,  is  not 
inconsistent,  for  he  had  added  to  this  parcel  a  very  valuable 
estate.  In  life,  he  kept  the  two  parcels  distinct  and  apart, 
and  although  we  cannot  resort  to  parol  evidence,  independ- 
ently of  the  will,  to  ascertain  the  testator's  intention,  it  is 
allowable  to  receive  information  of  his  past  conduct,  and  all 
the  circumstances  which  surrounded  him,  to  point  and 
determine  the  application  of  the  words  used  in  the  will.  The 
intention  of  the  testator  must  be  ascertained,  and  the  con- 
struction of  his  will  made,  from  the  terms  of  the  will  itself, 
but  we  may  be  aided  in  fixing  the  meaning  of  his  terms  by 
his  iisuset  norma  loquendi.  The  direction  to  sell,  of  course, 
could  not  apply  to  the  estate  given  to  his  wife,  even  for  life, 
and  could  not,  therefore,  include  his  whole  estate.  In  relation 
to  his  estate  proper,  the  testator,  so  far  from  giving  his  execu- 
tors power  to  sell,  as  to  the  only  portion  directed  to  be  sold, 
prescribes  that  the  sale  shall  be  made  by  an  agent  of  his  wife. 

There  is  no  general  residuary  clause  in  this  will,  and  if  the 
testator  has  died  intestate  as  to  any  subject  not  appurtenant 
to  the  General  Bull  estate,  which  is  directed  to  be  sold  and 
divided,  this  subject  must  proceed  to  his  next  of  kin.  It  is 
true,  that  the  word  remainder  occurs  in  the  directions  to  the 
executors  for  sale,  but  it  is  too  obvious  to  need  illustration, 
that  the  term  applies  only  to  the  residue  of  the  General  Bull 
-estate  not  sold  for  cash. 

The  next  question  is,  whether  the  Berry  Hill  tract  is  in- 


APPEALS  IN  EaUlTY.  197 

Columbia,  November  and  December,  IS-'iQ. 

clnclod,  as  an  incident  and  incrcnuMit  of  tlie  Goneral  l^ull 
estate,  within  the  yxnvor  of  the  executors  to  sell ;  and  on  this 
point  we  concur  with  the  Chancellor.  In  a  devise,  if  there  be 
found  two  sorts  of  property,  one  technically  and  precisely 
corresponding:  to  the  description  of  the  subject  in  the  devise, 
and  another  not  so  completely  answering  thereto,  the  latter 
will  be  excluded,  although  had  there  been  no  other  property 
on  which  the  devise  could  operate,  it  might  be  held  to  com- 
prise the  less  appro]iriate  subject,  1  Jarni.,  720.  This  is  sound 
doctrine,  and  for  myself  I  think  it  was  rightly  applied  in 
Oxender  Sr  Chichester,  3  Taunt.,  147,  as  I  have  elsewhere 
said  in  Lmvton  vs.  Hunt,  4  Rich.,  247.  But  under  John 
Bull's  will  no  subject  whatsoever  technically  and  precisely 
corresponds  to  the  terms  of  description  in  the  will,  nor  any 
which  can  be  brought  within  its  operation,  except  in  a  pojMi- 
lar  and  secondary  sense.  Usually,  and  not  including  cases 
where,  by  imposing  conditions,  testators  may  create  instances 
of  election,  a  testator  can  dispose  only  of  his  own  estate,  and 
not  of  the  estate  of  another,  even  of  a  deceased  brother, 
however  respected  and  lamented  ;  but  one  may  designate  his 
])lantation  by  any  appellative  he  chooses,  and  devise  it  by 
that  name.  If  the  testator  had  said,  I  devise  the  estate 
derived  by  inheritance  from  rny  brother,  probably  the  rule 
cited  would  have  been  applicable,  but  in  fact  he  says,  the 
estate  of  my  brother,  I  will,&c.  He  had  the  right  to  denomi- 
nate, and  he  did  denominate  his  Savannah  River  property  as 
the  General  Bull  estate,  including  Berry  Hill,  which  was 
mainly  paid  for  from  the  crops  of  the  plantation  inherited 
from  his  brother,  and  the  proceeds  of  the  sale  of  some  of  the 
negroes  belonging  to  that  plantation.  It  is  unnecessary  to 
add  more  to  the  circuit  decree  on  this  point. 

The  next  question  is,  as  to  the  negroes  born  after  the  date 
of  his  will  from  the  bodies  of  the  females  primarily  given  to 
his  wife.  Two  sets  of  post  nati  arc  involved  in  this  inquiry. 
As  to  the  descendants  of  Doll,  we  concur  with  the  Chancellor, 
and  cannot  profitably  add  to  his  reasoning.     As  to  the  ser- 


198  APPEALS  IN  EaUITY. 

American  Bible'Society  vs.  Noble. 

vaiits  on  tlie  Little  River  farm,  I  am  instructed  to  deliver  the 
opinion  of  the  Court,  (I  reserve  n\Y  own,)  approving  the 
conclusion  of  the  Chancellor  that  the  post  nati  do  not  pass, 
and  in  this  particular  the  decree  must  stand  on  its  own  rea- 
sons. The  distribution  of  the  fund  from  tliis  source,  how- 
ever, must  be  different  from  that  provided  in  the  decree,  as 
our  conclusion  concerning  the  effect  of  the  power  of  sale, 
excludes  the  religious  societies,  and  leaves  the  fund  as  intes- 
tate property  to  the  succession  of  the  next  of  kin. 

Another  question  is,  as  to  the  bequest  of  $5,000  to  testator's 
step-son.  On  this  point  we  differ  from  the  Chancellor.  The 
testator,  in  the  first  instance,  cheerfully  gives  this  sum  of 
money  absolutely  to  the  legatee,  and  then  proceeds  to  express 
the  desire  that  no  person  shall  be  allowed  to  deprive  him  of 
it  during  his  natural  life,  and  that  the  legatee  himself  shall 
not  be  allowed  to  squander  the  minutest  portion  of  the  prin- 
cipal, and  be  only  allowed  to  use  the  annual  interest.  An 
absolute  gift  can  be  reduced  in  effect  only  by  the  clearest 
expression  of  the  donor's  purpose  in  the  context  to  limit  its 
effect.  Here  there  is  no  limitation  over  of  the  principal 
fund,  and  yet  there  is  distinct  manifestation  of  testator's  pur- 
pose to  dispose  of  his  whole  estate.  In  similar  terms  the  tes- 
tator expresses  his  desire  to  secure  the  estate  given  to  his 
wife,  so  that  no  person  shall  be  able  to  deprive  her  of  it  during 
her  natural  life.  In  both  instances,  we  understand  the  testa- 
tor as  attempting  to  give  the  property  exempt  from  its  neces- 
sary incident  of  liability  for  debt,  which  is  impracticable. 
As  to  his  step-son,  probably  the  counsel  or  advice  not  to 
exceed  the  annual  interest  in  the  use  of  the  legacy,  was 
intended;  but  we  do  not  perceive  any  sufficient  indication 
to  restrict  his  right  to  use  it  as  he  pleases.  In  general,  pecu- 
niary legacies  bear  interest  from  a  year  after  testator's  death, 
and  we  see  nothing  as  to  this  legacy  to  justify  departure  from 
the  general  rule. 

As  to  so  much  of  the  appeal  as  relates  to  the  debt  of  tes- 
tator   to   the   estate   of  David  Morrow,  we    decide   nothing, 


APPEALS  liN  EaUITV.  I!>9 

Columbia,  November  and  December,  1659. 

except  that  there  shall  be  no  presnn)ptioii  from  the  appeal 
or  otherwise  that  the  matter  was  decided  against  the  appel- 
lant. The  (Chancellor  intended  that  tiiis  matter  shonld  he 
embraced  in  the  inc]niries  directed  to  be  made  by  the  com- 
missioner, and  we  think  it  safer  to  reserve  judgment  until,  by 
report  and  exceptions,  the  matter  may  be  more  distinctly  pre- 
sented for  adjudication. 

We  may  next  consider  tlie  appeal  on  behalf  of  the  execu- 
tor, that  he,  directed  by  the  will  to  make  the  sale,  and  not  the 
commissioner  of  the  Court,  as  ordered  by  the  decree,  shonld 
make  the  sale  of  Berry  Hill.  We  consider  this  appeal  to  be 
well  taken.  When  the  order  for  sale  of  the  estate  was  ori- 
ginally granted,  John  Bull  seemed  to  be  intestate  as  to  iiis 
whole  estate,  and  this  Court  having  custody  of  the  estate, 
l)roperly  directed  the  sale  to  be  made  by  its  own  officer; 
and  so  far  as  the  order  has  been  executed,  it  must  be  sup- 
ported, and  if  the  executor  is  dissatisfied  with  his  compensa- 
tion for  trouble  and  management,  his  remedy  is  in  the  Law 
Court  for  extra  compensation  nnd(!r  the  Act  of  17S9.  But 
as  we  understand  the  facts,  Berry  Hill  is  still  unsold,  and  as 
we  have  adjudged  this  tract  to  be  parcel  of  the  General  Bull 
estate,  which  the  executors  were  directed  by  the  testator  to 
sell,  and  as  there  is  no  charge  of  insolvency  or  misconduct 
made  as  to  the  executor,  we  adjudge  that  it  is  his  privilege  to 
make  the  sale  of  Berry  Hill,  and  that  so  much  of  the  decretal 
order  as  directs  it  to  be  made  by  the  commissioner,  be 
rescinded. 

The  remaining  and  most  important  question  in  the  case  is 
as  to  the  capacity  of  the  testator  to  give  the  residue  of  the 
proceeds  of  sale  of  the  General  Bull  estate,  to  the  religious 
corporations  which  are  the  objects  of  his  donation.  The 
right  of  these  corporations  to  take  personalty  is  not  seri- 
ously contested,  but  it  is  insisted  that,  as  the  statutes  of  wills, 
32  and  34  Henry  VHl,  and  our  Act  of  1733  or  1734,  (it 
is  twice  printed,  in  3  Stat.,  and  of  these  successive  years,  at 
the  pages  341,382,)  except  corporations  from  the  objects  of 


200  APPEALS  IN  EaUITY. 

American  Bible  Society  t'.v.  Noble. 

the  devises  of  land,  it  is  unlawful  to  bequeath  the  proceeds 
of  land  to  corporations.  Minute  distinction  might  be  made 
between  exceptions  in  enabling  statutes  and  positive  prohibi- 
tions, and  between  the  capacity  of  a  testator  to  give,  and  of  a 
legatee  to  take,  but  I  have  not  leisure  to  dwell  upon  them. 
It  was  argued  for  the  corporations,  that  before  the  statute  of 
wills,  by  special  custom  in  Kent,  retained  from  ancient  Saxon 
laws,  proprietors  of  lands  held  in  gavelkind,  had  the  right  to 
devise  lands  ;  and  that,  as  by  the  charters  of  King  Charles  II 
to  the  lords  proprietors  of  South  Carolina,  lands  were  to  be 
held  of  the  king  as  of  the  manor  of  East  Greenwich,  in 
Kent,  all  lands  in  South  Carolina  are  devisable,  independently 
of  the  statutes  of  wills  and  of  the  Act  of  1733.  Rut  we 
have  no  proof  that  this  special  custom  authorized  devises  to 
corporations;  and  if  this  were  conceded,  the  surrender  of 
the  charters  to  the  king  about  1727,  brought  lands  here  under 
the  general  common  law  of  England;  and  such  persons  as 
claim  privilege  beyond  the  common  law,  must  prove  their 
right  to  be  excepted  from  the  operation  of  the  system.  Hence 
arose  the  necessity  of  passing  the  Act  of  1733,  briefly  after 
the  surrender  of  the  charters.  Again,  it  is  urged  that  the 
Act  of  17S9,  prescribing  the  formalities  according  to  which 
wills  of  land  may  be  made,  but  making  no  mention  of  the 
devisees,  and,  of  course,  omitting  the  exception  as  to  corpo- 
rations, amounts  to  a  repeal  of  the  Act  of  1733.  But  there 
are  no  inconsistent  provisions  in  the  two  Acts,  and  repeals 
by  implication,  are  little  favored,  and  affirm.ative  statutes,  in 
relation  to  the  same  matter,  are  properly  construed  in  pari 
materia.  We,  therefore,  assume,  that  devises  of  lands  to 
corporations,  are  inhibited  generally,  and  that  particular  cor- 
porations, claiming  right  to  take  lauds  by  devise,  must  estab- 
lish their  right  by  their  charters,  or  some  other  special  law 
proceeding  from  the  legislative  authority  of  this  State.  But 
the  inhibition,  in  terms,  extends  only  to  devises  of  lands,  and 
the  burden  is  on  the  heirs,  or  next  of  kin,  to  demonstrate 
that  a  bequest  of  the  proceeds  of  lands  is  equivalent  to  a 


APPEALS  IN  EaUITY.  201 

Columbia,  November  antl  December,  1859. 

devise  of  lands  specifically.  The  FJnglish  statutes  of  mort- 
main are  not  of  force  in  this  State,  and  our  only  Act  which 
can  be  denominated  a  statute  of  mortmain,  is  this  Act  of 
1733.  So,  too,  the  statute  of  37  Eliz.,  concerning  charities, 
(wliich  was  greatly  modified  by  the  statute  of  9  Geo.  II,  com- 
monly called  the  statute  of  morlmain,)  is  not  of  force  here. 
The  whole  issue,  therefore,  hangs  on  the  extent  of  the 
ex'ception  in  the  Act  of  1733.  There  are  reasons  of  policy, 
which  might  induce  the  legislature  to  enact  that  lands  should 
not  be  held  in  the  dead  clutch  of  those  who  owe  no  allegi- 
ance, and  where  there  is  no  liability  to  escheat,  which  are 
inapplicable  to  money  or  other  personalty.  It  is  incident  to 
corj)orations  at  the  common  law,  to  take  personalty  by  be- 
quest, and  this  power  is  not  totally  or  generally  recalled  by 
any  statute,  and  it  may  be  conceded,  for  the  purposes  of 
this  argument,  that  they  cannot  take  devises  of  land  without 
license  from  the  crown,  in  England,  or  here  without  grant 
from  the  legislature.  Equity  considers  to  be  done  that  which 
should  be  done,  and  regarding  the  substance  rather  than  the 
form  of  a  will,  considers  land  to  be  converted  into  money 
wherever  testator  directs  the  land  to  be  sold,  and  nothing 
intervenes  to  prevent  the  execution  of  the  direction  on  prin- 
ciples of  equity.  A  testator  has  the  power  to  change  the 
nature  of  his  estate  as  from  realty  to  personalty,  so  as  to 
preclude  all  questions  between  his  heirs  and  personal  repre- 
sentatives, 1  Wins.,  551,  554.  It  is  quite  true,  that  if  the 
testator  direct  the  conversion  for  a  purpose,  wliich  fails  in 
whole,  or  in  part,  the  heir  is  entitled  to  the  whole,  or  resi- 
due, as  land.  Ackroyd  vs.  Smilhson^  North  r.9.  J'alk.  And 
that  if  the  conversion  be  not  actually  effected  by  sale,  and 
be  not  necessary,  the  beneficial  legatee  may  take,  at  his 
option,  the  land  or  the  proceeds.  But  these  apparent  excep- 
tions in  no  respect  limit  or  qualify  tiie  general  doctrine  of 
equitable  conversion,  where  it  is  directed  absolutely,  or,  as 
the  phrase  is,  out  and  out,  and  the  conversion  is  necessary 
to  fulfil   the   purposes  of  the   testator.       Craig  vs.  Leslie,  3 


203  APPEALS  IN  EaUITY. 

American  Bible  Society  vs.  Noble. 

Wheat.,  563.  It  is  argued  that  this  doctrine  of  equitable 
conversion  applies  only  between  the  objects  of  gift,  and  not 
as  to  the  donor;  and  thus  far  I  approve  and  follow  the  argu- 
ment, and  it  is  further  urged  that  it  has  no  application  to  the 
instrument  of  gift.  If  no  more  be  meant  by  this  than  that 
there  must  be,  first,  a  devise  established  before  a  conversion 
can  be  etfected;  this  too  may  be  admitted  as  sound  doctrine, 
and  estabhshed  by  this  very  case  in  the  Court  of  Errors. 
The  vice  in  the  decision  of  Griffin  vs.  Matthews,  following 
WiJkins  vs.  Taylor,  8  Rich.,  291,  was,  that  the  Court  applied 
the  doctrine  of  conversion  to  the  frame  or  structure  of  the 
instrument,  and  seeing  that  the  will  directed  a  sale  of  land, 
and  distribution  of  the  proceeds,  allowed  the  will  to  be 
admitted  to  probate  on  proof  adequate  to  a  testament,  yet 
insufficient  to  a  devise.  Here,  however,  the  will  has  been 
admitted  to  probate  as  a  will,  and  the  only  question  is  as  to 
the  effect  of  a  devise  directing  conversion.  It  is  further 
urged,  that  as  our  Act  forbids  the  direct  devise  of  lands  to 
corporations,  it  forbids  what  is  the  same  thing  in  substance, 
a  bequest  of  the  proceeds  of  lands;  and  that  we  tolerate  eva- 
sion of  the  policy  of  the  State  by  allowing  bequests  of  the 
proceeds  of  lands.  This  view  is  plausibly  supported  by  the 
decisions  in  the  English  Chancery  on  the  statute  of  9  Geo.  II, 
which  are  collected  in  a  note,  2  Fonb.,  210.  That  statute,  in 
express  terms,  only  inhibited  gifts  of  lands  and  of  charges 
and  incumbrances  on  them,  and  of  money  to  be  laid  out  in 
lands,  to  religious  corporations,  but  in  Attorney  General  vs. 
Lord  Weymouth,  Ambl.,  20,  Lord  Hardwicke  determined 
that  a  gift  of  the  proceeds  of  the  lands  was  likewise  prohib- 
ited on  a  construction  of  the  enactment  in  connection  with 
the  preamble;  and  his  judgment  was  followed  afterwards  in 
several  cases.  Unquestionably  this  construction  was  attained 
by  considering  the  spirit  and  policy  of  the  Act;  and  one  stiff 
in  his  notions  of  construction  might  well  doubt  of  the  pro- 
priety of  the  decision.  Yet  the  terms  of  that  are  much  more 
extensive  than  those  in  the  statutes  of  wills  and  our  Actj 


APPEALS  IN  EQUITY.  203 

Columbia,  November  and  December,  1S59. 

and  (lie  decisions  proceed  expressly  on  the  terms  of  the 
statute.  14  Ves.,  541.  A  like  conclusion  has  been  attained 
on  the  large  words  of  the  statute  11  and  12  Wni.  Ill,  as  to 
gifts  to  Papists.  Roper  vs.  liuclcUffe,  9  Mod.,  167;  10  Mod., 
89.  So,  too,  in  Delaware,  on  a  statute  of  1787,  declaring  all 
devises  to  religious  corporations  void,  a  like  result  was  at- 
tained. Slate  vs.  fVilthank,  2  Harris,  22.  But  no  case  in 
England  on  the  exception  in  the  statute  of  wills,  nor  in  New 
York,  where  the  same  exception  j)revails,  nor  elsewhere,  has 
been  cited  to  show  that  the  inhibition  of  a  devise  of  lands 
also  inhibits  a  bequest  of  the  proceeds.  On  the  contrary,  the 
prohibition  of  direct  devise  of  lands  has  been  held  not  to 
inhibit  the  devise  of  a  trust  in  lands.  I  regret  that  I  have 
not  time  to  pursue  this  investigation  further,  but  Chancellor 
Jones  has  fully  examined  the  cases  in  McCarler  vs.  Orphan 
jlsyhun,  9  Cowen,  437,  and  a  fair  summary  of  the  doctrine 
may  be  found  in  Angell  &  Ames  on   Corporations,  137,  150. 

It  may  be  granted  that  the  corporations  to  whom  the 
bequests  are  made  must  be  competent  to  take  not  only  by 
the  laws  of  the  States  which  chartered  them,  but  also  by  the 
laws  of  this  State.  We  have  endeavored  to  show  that  there 
is  nothing  in  our  law  which  hinders  them  to  take  bequests 
as  corporations,  and  on  looking  at  their  charters  by  the  for- 
eign States,  we  find  nothing  to  obstruct  this  capacity.  All  of 
them,  in  substance,  are  authorized  to  purchase,  hold  and 
convey  estate.  It  may  be  that  the  term  purchase,  although 
usually  including  all  modes  of  acquisition,  except  by  descent, 
should  be  interpreted  as  to  direct  devises  of  land  in  a  popu- 
lar sense,  so  to  ctnbrace  only  acquisitions  of  land  hy  pay- 
ment of  the  price  or  value;  but  this  is  altogether  unimportant 
where  the  gift  is  considered  a  bequest  of  personalty. 

It  is  ordered  and  decreed  that  the  circuit  decree  be  mod- 
ified according  to  this  opinion,  and  that  in  other  respects  the 
decree  be  affirmed  and  the  appeal  dismissed. 

Du^KIN,  Ch.,  concurred. 


204  APPEALS  IN  EaUlTY. 

American  Bible  Society  vs.  Noble. 

Johnston,  Ch.,  said:  I  concur  throughout,  except  as  to  the 
right  of  the  executor  to  sell;  as  to  which,  I  apprehend  that 
much  inconvenience  and  perplexity  will  arise  in  future 
cases,  where  the  executor  is  authorized  to  make  partial  sales. 
Sound  practice  (and  this  is  only  a  question  of  practice) 
requires,  that  where  an  estate  is  to  be  administered  by  the 
Court,  the  whole  fund  should  be  in  the  hands  of  its  officer. 

Decree  modified. 


CASES    IN    EQUITY 

ARGUED   AND    DETEKMINED 

IN   THE  COURT  OF  APPEALS, 

At  Charleston,  January  Term,  1860. 


JUDGES    present 


HON.  JOHN  B.  O'NEALL,  Chief  Justice. 
HON.  JOB  JOHNSTON,  Associate  Judge. 
HON.    F.  H.  WARDLAW,  Associate  Judge. 


MiLBERRY  S.  Martin,  Executrix,  vs.  James  B,  Campbell. 
Evidetice — Aiiswer — Solicitor — Fee. 

Defendant  contended  that  an  agreement  had  been  repudiated,  and  to  prove  it 
oflered  his  own  answer  in  another  cause  between  the  same  parties  : — Held, 
that  if  defendant  could  make  proof  in  this  collaieral  way,  still  the  answer  did 
not  prove  the  fact,  as  the  matter  was  not  distinctly  alleged. 

A  oolicitor  who  has  an  interest  in  attending  to  a  cause,  cannot,  it  seems,  charge 
for  his  services,  there  being  no  express  agreement  to  pay. 

BEFORE  DARGAN,  CH.,  AT  CHARLESTON,  FEBRUARY,  18r)8. 

The  decree  of  his  Honor,  the  Circuit  Chancellor,  is  as  fol- 
lows: 

Dargan,  Ch.  Benjamin  F.  Hunt  many  years  ago  became 
the  purchaser  of  a  plantation  on  the  Pee  Dee  river,  in 
Georgetown  district,  called  "  Richfield,"  and  of  the  negroes 


206  APPEALS  IN  EaUITY. 

Martin  vs.  Campbell. 

thereon,  for  the  sum  of  $120,000;  one-sixth  of  the  purchase 
money  was  paid  in  cash,  or  its  equivalent:  the  rest  of  the 
purchase  money  was  payable  in  five  equal  annual  instal- 
ments of  §520,000  each,  secureiJ  by  bond  and  mortgage  of  the 
plantation  and  negroes;  the  bonds  all  drew  interest.  Two  of 
these  bonds,  the  subject  matter  of  this  suit,  came  into  the 
hands  of  William  Aiken  by  assignment,  and  were  his  prop- 
erty in  his  own  right,  and  were  negotiated  and  assigned  by 
him,  as  hereinafter  stated. 

The  late  Robert  Marti»i,  with  the  intent  of  becoming  the 
purchaser  of  said  bonds  from  William  Aiken,  and  having 
engaged  James  B.  Campbell  as  his  agent  in  the  negotiation 
for  the  said  purchase,  on  2Sth  August,  1849,  paid  to  said 
Campbell  the  sum  of  f  30,000,  the  receipt  of  which  the  said 
Campbell  acknowledged  in  the  following  manner:  "Charles- 
ton, August  2S(h,  1849.  Received  of  Robert  Martin,  Esq., 
the  sum  of  thirty  thousand  dollars,  in  trust,  to  be  paid  this 
day  to  the  Hon.  William  Aiken,  for  purchase  money  of  his 
bonds  of  Col.  B.  F.  Hunt,  and  all  the  securities  thereto,  con- 
sisting of  mortgage  of  Pee  Dee  plantation  and  negroes,  judg- 
ment in  Common  Picas  for  Charleston  district,  and  an  order 
for  foreclosure  in  the  same  Court,  which  bonds  and  securi- 
ties, with  interest  to  this  date,  amount  to  upwards  of  sixty 
thousand  dollars."     (Signed)  "James  B.  Campbell." 

A  few  days  afterwards,  the  defendant,  James  B.  Campbell, 
executed  an  instrument  which  he  delivered  to  the  plaintifPs 
testator,  Robert  Martin,  in  which  the  terms  of  the  contract 
were  very  fully  and  clearly  stated  as  follows:  "  Broad  street, 
September  1st,  1849.  The  assignment  of  William  Aiken  to 
myself,  dated  this  day,  of  his  claims  upon  Col.  B.  F.  Hunt, 
consisting  of  two  bonds  for  $20,000  each,  with  interest,  and 
a  mortgage  of  Richfield  and  negroes,  with  a  judgment,  and 
an  order  of  foreclosure  in  Common  Pleas  to  secure  them, 
which  assignment  is  herewith  enclosed,  is  in  trust  for  Robert 
Martiny  Esq.,  who  furnished  the  sum  of  thirty  thousand 
dollars,  which  I  paid  to  Mr.  Aiken  as  the  consideration  for 


APPEALS  IN  EaUITY.  207 

Charleston,  January,  1860. 

said  assignment.  Mr.  Martin  has  niy  recoipt  for  the  money, 
which  will  show  tliat  this  declaration  is  correct,  and  he  is 
fully  authorised  to  write  over  my  signature  on  the  margin  of 
said  assignment,  whatever  may  be  deemed  necessary  to  con- 
firm or  establish  his  right  to  said  claims,  bonds  and  securities. 
The  agreement  between  Mr.  Martin  and  myself  is,  that  after 
paying  him  in  full  thirty  thousand  dollars,  with  interest  from 
the  28th  of  August,  1S49,  the  balance  which  may  be  col- 
lected on  said  claims  upon  Col.  Hunt,  is  to  bo  equally 
divided. 

"  I  am  to  contribute  my  professional  services  to  collect  said 
claims  free  of  charge.  (Signed)  James  B.  Cami)bell.  This 
declaration  is  made  in  consequence  of  the  weatlier  prevent- 
ing me  from  seeing  and  settling  with  Mr.  Martin  this  after- 
noon."    (Signed)  "  J.  B.  C" 

On  the  first  day  of  Sef)tember,  1S49,  there  was  a  still  fur- 
ther declaration  on  the  part  of  J.  B.  Campbell,  of  the  terms 
of  the  agreement,  in  an  instrument  signed  by  him,  and  which 
is  as  follows: 


OF  South  Carolina,  "I 
Jity  of  Charleston.      j 


"  The  State  of  South  Carolina, 
Ci 


"Memorandum  of  an  agreement,  made  and  entered  into 
by  and  between  Robert  Martin,  Esq.,  and  James  B.  Camp- 
bell. The  Hon.  William  Aiken  having  this  day  executed  an 
assignment  to  James  B.  Campbell,  in  trust,  of  his  claims 
upon  B,  F.  Hunt,  Esq.,  and  Robert  Martin  having  on  the 
2Sth  .day  of  August,  ultimo,  (1849,)  advanced  the  sum  of 
thirty  thousajid  dollars  in  cash,  being  the  full  amount  paid 
by  tlie  said  James  B.  Campbell  for  said  claims,  and  the  said 
assignment  iieing  in  fact  in  trust  for  the  said  Robert  Martin 
alone:  Now,  be  it  rememl)ered  that  the  said  Robert  Martin 
and  James  B.  Campbell  liave  agreed,  and  it  is  hereby  agreed 
between  them,  as  follows: 

"  The  said  James  B.  Campbell  has  undertaken  the  entire 
management  of  said  claims,  and  agrees  to  prosecute  the  col- 


208  APPEALS  IN  EaUlTY. 

Martin  vs.  Campbell. 

lection  and  security  of  the  same,  and  to  devote   thereto  his 
best  professional  services  without  fee  or  charge. 

"And  the  said  Robert  Martin  is  to  take  and  receive  the 
first  money  or  monies  collected  thereon,  and  as  fast  as  the 
same  shall  be  collected  from  time  to  time,  until  the  said  sum 
of  thirty  thousand  dollars,  with  interest  thereon  from  the  28th 
day  of  August,  1849,  shall  be  paid  in  full ;  and  then  after 
the  said  sum,  principal  and  interest  shall  be  paid  in  full, 
whatever  other  or  further  sums  shall  be  collected,  received  or 
paid  on  said  assigned  claims,  shall  be  equally  divided  between 
the  said  Robert  Martin  and  the  said  James  B.  Campbell,  one 
moiety  to  each,  share  and  share  alike;  and  in  case  of  the 
death  or  other  disability  of  the  said  James  B.  Campbell  before 
the  final  close  and  completion  of  his  duties  under  this  agree- 
ment, then  the  said  Robert  Martin  shall  be  at  liberty  to  select 
and  employ  such  counsel  or  attorney  in  the  place  of  the  said 
James  B.  Campbell,  as  he  shall  prefer  to  complete  his  said 
duties,  and  the  costs  and  fees  and  reasonable  charges  conse- 
quent thereon,  shall  be  paid  and  deducted  out  of  and  from 
the  share  and  interest  of  the  said  James  B.  Campbell,  under 
and  by  virtue  of  this  agreement.  Witness  our  hands  and 
seals,  this  first  day  of  September,  A.  D.  eighteen  hundred  and 
forty-nine. 

(Signed)  JAMES  B.  CAMPBELL,  [l.  s.j 

In  the  presence  of  Virgil  Maxcv." 

The  whole  principal  and  interest  due  on  the  two  bonds  of 
B.  F.  Hunt,  assigned  by  William  Aiken  as  aforesaid,  have 
been  received  by  Campbell,  or  are  subject  to  his  order;  and 
this  bill  is  filed  by  Milberry  S.  Martin,  executrix  of  Robert 
Martin,  deceased,  against  Campbell,  for  an  account  of  said 
moneys  so  received  by  him,  in  pursuance  of  the  agreement 
which  has  been  recited,  and  which,  so  far  as  they  have 
not  been  received,  are  subject  to  his  order,  and  for  general 
relief. 

The  only  controversy  between  these  parties  is,  whether  in 


APPEALS  IN  EaUITY.  209 

Charleston,  January,  1S60. 

respect  to  the  Aiken  bonds,  the  plaintiff's  testator  was  the 
owner  of  said  bonds,  and  Campbell,  the  agent  and  trustee, 
with  the  right  to  one  moiety  of  the  balance  realized  after 
Martin  was  reimbursed  for  his  advances  and  interest,  or 
whether  Campbell  is  the  owner  of  the  bonds,  with  only  a 
pledge  of  the  same  to  Martin,  to  secure  him  for  the  money 
he  had  advanced  for  their  purchase.  If  we  accept  the  deftmd- 
ant's  version  of  the  transaction,  he  is  entitled  to  the  whole  of 
the  clear  profits  of  the  speculation,  amounting  to  $34,000  or 
$35,000,  and  Martin  is  only  to  be  reimbursed  for  his  advances 
of  money  and  interest.  But  by  the  plaintiff's  statement,  the 
defendant  is  only  entitled  to  one-half  of  the  profits,  and 
Martin  to  the  other  half. 

If  wo  are  governed  by  the  original  contract,  reduced  to 
writing  by  the  defendant  himself,  there  can  be  no  ground  for 
any  difference  of  opinion.  In  that  view  of  the  case,  the 
plaintiff's  interpretation  is  the  correct  one.  The  language  is 
peculiarly  felicitous  and  significant  to  express  the  meaning 
and  intention  of  the  parties.  In  the  receipt  for  the  $30,000^ 
of  the  28th  August,  1S49,  the  defendant  acknowledges  that 
he  has  received  that  sum,  not  as  a  creditor  or  borrower,  but 
in  trust.  In  the  defendant's  statement  of  the  contract  of  1st 
September,  1849,  he  acknowledges  that  the  assignment  of  the 
bonds,  and  the  securities,  is  in  ^^  trust  for  Robert  Martiny. 
who  furnished  the  siu7i  of  thirty  thousand  dollars,  which  was 
paid  to  ,/Jiken,  as  the  consideration  money  for  the  assign- 
ment.^^ He  authorizes  Martin  ^^  to  write  over  his  signature, 
on  the  margin  of  the  assig7i?nent ,  whatever  may  be  deemed 
*  necessary  to  confrni  and  establish  his  righf  to  said  clairns,. 
bonds  and  securities.'^  "  The  agreement  between  Mr.  Mar- 
tin and  myself  is,  that  after  paying  him  in  full  'thirty  thous- 
and dollars,  with  interest  from  2Sth  August,  1849,'  the  balance 
which  may  be  collected  on  said  claims  upon  Col.  Hunt,  is  to 
be  '  equally  divided.'  " 

"  I  am  to  contribute  my  professional  services  to  collect  said 
claims  free  from  all  charge." 
10 


210  APPEALS   [N  EaillTY. 

Martin  vs.  Campbell. 

Can  anything  be  plainer?  If  there  be  any  significancy 
in  language,  this  means  that  Martin  was  to  be  reimbursed 
for  his  outlay  of  money,  with  interest  on  the  same,  and 
that  he  and  Campbell  were  to  be  partners  in  equal  shares 
or  proportions  as  to  the  balance — Campbell  contributing  his 
services  free  of  charge.  He  contributes  his  services  as  an 
equivalent  for  an  equal  share  of  the  profits.  If  the  specula- 
tion was  entirely  Campbell's,  and  the  money  advanced  by 
Martin  to  be  only  a  simple  debt  from  Campbell  to  him,  where 
was  the  necessity,  or  meaning  of  the  provision,  that  Campbell 
was  to  contribute  his  professional  services  free  of  charge 
for  attending  to  his  own  business!  The  same  terms  and 
stipulations  are  iterated  in  the  memorandum  of  the  agree- 
ment of  1st  September,  1849.  and  the  terms  of  the  contract  are 
made  so  clear  and  explicit,  that  the  most  ingenious  sophistry 
cannot  distort  them  into  any  other  meaning  than  that  which 
the  language  imports.  In  truth,  this  is  so  unambiguous,  that 
I  suppose  it  cannot  be  the  intention  of  the  defendant  to  deny 
the  contract  as  it  originally  stood,  and  as  I  have  construed  it ; 
and  I  suppose  him  to  have  meant  simply,  that  the  contract 
was  afterwards  abandoned  or  modified,  though  I  am  not 
authorized  to  say,  from  anything  that  occurred  in  the  trial, 
that  this  concession  was  made. 

The  contract  then  stood  originally  as  I  have  stated  it.  If 
this  be  true,  it  will  hardly  be  disputed  that  the  onus  is  upon 
the  defendant  to  prove  such  modification  or  abandonment. 

I  will  proceed  to  consider  the  only  evidence  bearing  on 
this  question  which  has  been  submitted :  One  of  the  bonds 
for  $20,000,  given  by  B.  F.  Hunt  to  Charles  T.  Brown,  for  the 
Richfield  plantation  and  negroes,  had  fallen  into  the  hands 
of  the  late  William  Mathews,  and  was  bequeathed  by  him  to 
his  grand-children,  namely:  Wm.  M.  Hunt,  B.  F.  Hunt,  Jr., 
and  Mrs.  Mootry,  together  with  the  mortgage  and  other  secu- 
rities. John  H.  Tucker  also  held  sundry  bonds  of  B.  F. 
Hunt,  Sr.,  secured  by  a  mortgage  of  Richfield  and  the 
negroes  thereon,  which  he  claimed  to  have  an  equal  lien  with 


APPEALS  IN  EQUITY.  211 

Charleston,  January,  ISGO. 

tliat  of  the  Mathews  and  Aiken  bonds.  On  the  16th  of  Feb- 
ruary, 1S52,''  Tucker  filed  a  bill  against  B.  F.  Hunt,  to  fore- 
close his  mortgai^e  on  Richfield  and  negroes,  and  with  the 
view  of  having  the  rights  of  all  the  parties  who  claimed  to 
liave  liens  upon  this  property  adjudicated,  he  made  the  afore- 
said legatees  of  Mathews  parties  defendants.  He  also  made 
parties  defendants  to  the  bill,  James  B.  Campbell  and  Robert 
Martin,  as  assignees  of  the  Aiken  bonds.  Among  other 
things,  the  plaintiff,  Tucker,  sought  from  Campbell  and  Mar- 
tin a  discovery,  "  whether  the  transfer  of  the  Aiken  bonds 
was  for  his  (Aiken's)  own  use  or  that  of  Robert  Martin,  or  any 
other  and  what  person,  or  for  both,  and  for  any  other  and 
what  use  or  uses,  and  what  were  the  terms  thereof."  Martin, 
in  his  answer  responding  to  this  part  of  Tucker's  bill,  says, 
"that  some  time  in  the  summer,  A.  D.  1S49,  James  B.  Camp- 
bell, one  of  his  codefendants,  being  engaged  in  a  negotiation 
with  the  Hon.  William  Aiken,  for  the  purchase  of  certain 
bonds  of  Benjamin  F.  Hunt,  secured  by  the  mortgage  of  a 
plantation  called  Richfield,  with  the  negro  slaves  thereon, 
applied  to  him  to  know  if  iti  case  he  should  make  such  pur- 
chase, whether  he  (the  defendant,  Martin,)  would  advance 
and  loan  hirn  a  large  sum  of  money  to  aid  him  in  said  pur- 
chase ;  to  which  this  defendant  assented,  first  informing  Mr. 
Aiken  of  his  intention  to  aid  Mr.  Campbell  in  case  he  should 
sell  said  bonds  and  mortgage  to  him.  This  defendant  had 
previously  known  of  said  bonds  and  mortgage  by  reason  of 
his  confidential  relations  with  Mr.  Aiken,  and  had  formed 
some  opinion  of  their  value,  which,  together  with  his  reliance 
upon  the  confident  opinion  of  Mr.  Campbell,  induced  him  to 
believe  them  to  be  ample  security  for  the  amount  of  the  loan 
Mr.  Campbell  desired.  Accordingly,  on  the  1st  of  Septem- 
ber, A.  D.  1849,  this  defendant  advanced  and  loaned  to  Mr. 
Campbell  a  large  amount  of  money,  which  was  paid  by  Mr. 


»  Thi?  is  an  error  in  the  decree  :  the  l)ill  was  filed   December  27th,  J 851  ;  Mr. 
Martin's  answer  was  filed  February  IGth,  lb!)2.  S.  i  D. 


212  APPEALS  IN  EaUITY. 

Marlin  vs.  Campbell. 

Campbell  to  Mr.  Aiken,  and  his  pnrcliase  completed  ;  very 
soon  thereafter,  Mr.  Campbell  deposited  with  this  defendant 
the  assignment  by  William  Aiken  of  said  bonds  and  mort- 
gage for  the  said  loan.  Snbseqnently,  and  since  that  time, 
this  defendant  and  Mr.  Campbell  have  had  sundry  under- 
standings and  agreements  about  the  loan  and  the  said  bonds 
and  mortgage  ;  all  of  which  have  been  entirely  satisfactory  to 
both  parties,  and  are  of  no  interest  or  concern  to  the  plaintiff." 
This  is  the  language  of  Martin  in  his  answer  to  the  bill  of 
John  H.  Tucker  vs.  B.  F.  Hunt  and  others.  I  speak  in  the 
strictest  conformity  with  the  facts  when  I  say,  that  this  is  the 
only  evidence  that  tends  to  show  that  the  contract,  as  ex- 
pressed in  the  instruments  which  I  have  recited,  was  in  any 
respect  modified  or  changed,  from  what  it  was  expressed  to 
be  in  those  instruments.  While  there  it  is  represented  in  the 
plainest  language,  that  the  assignment  of  the  bonds  and  the 
securities  was  for  Martin's  benefit ;  that  the  assignment  to 
Campbell  was  in  trust  for  Martin  ;  that  the  first  money  real- 
ized from  Hunt's  bond  was  to  be  paid  to  Martin,  in  reim- 
bursement for  the  sum  that  he  had  advanced  in  the  purchase; 
that  the  clear  balance  was  to  be  equally  divided  between 
Martin  and  Campbell,  and  that  Campbell  was  to  contribute 
his  professional  services  free  of  charge  :  it  is  represented  in 
this  answer,  (Martin  himself  speaking,)  that  the  ^30,000  was 
a  loan  to  Campbell,  and  Campbell  a  debtor  to  Martin  for  the 
same ;  that  the  assignment  was  to  Campbell  for  his  own 
benefit,  and  that  Martin  had  no  other  interest  in  the  assign- 
ment by  Aiken,  and  the  deposit  of  the  same  with  Martin, 
except  that  it  was  to  be  considered  as  a  pledge  for  payment 
of  the  $30,000  due  by  Campbell  to  him. 

There  is  a  discrepancy  certainly,  and  an  incompatibility 
between  the  statement  in  Martin's  answer,  and  the  only  pos- 
sible construction  of  the  terms  of  the  contract  as  given  in  the 
instruments  which  have  been  recited.  The  conflict  cannot 
be  reconciled.     It  only  remains  for  us  to  enquire,  what  was 


APPEALS  IN  EaUITY.  213 

Cliarleston,  January,  ISCO. 

the  contract,  and  whether  in  fact  it  was  afterwards  modified 
or  changed. 

In  the  first  place,  it  would  be  dilficult  to  assign  a  rational 
motive  to  Martin  for  vesting  $30,000  of  his  cash  in  hand  in 
this  operation,  with  no  other  expectation  than  to  get  back  his 
principal  and  interest — to  get  back  that  which  he  had  in 
hand.  To  adopt  the  defendant's  version  of  the  matter  would 
be  to  make  Martin  advance  his  money  to  a  large  amount  in 
the  ])urchase  of  Hunt's  bonds,  to  incur  the  hazard  and 
trouble  of  collecting  them  by  a  course  of  vexatious  and  pro- 
tracted litigation,  with  a  view  only  to  Campbell's  benefit,  and 
without  the  prospect  of  a  contingent  ])rofit  to  himself  to  the 
amount  of  one  cent.  Martin  may  have  done  this,  but  it 
would  be  very  different  from  what  a  man  would  be  likely  to 
do  under  like  circumstances.  When  the  purchase  of  the 
bonds  was  made,  there  was  due  on  them,  of  principal  and 
interest,  $60,000,  and  upwards;  and  to  be  repaid  his  advan- 
ces of  money  and  the  interest,  and  to  realize  that  amount  of 
j)rofit,  even  if  it  was  to  be  shared  equally  between  them,  was 
a  tempting  speculation  to  the  capitalist,  and  one  which  we 
may  readily  suppose  he  would  embrace. 

But  to  go  back  to  the  answer  of  Martin,  to  the  bill  of 
Tucker  vs.  Hunt  and  others.  This  answer  makes  Martin 
admit,  not  only  that  the  §30,000  paid  to  Aiken  for  the  bonds 
was  a  loan  by  Martin  to  Campbell,  but  that  Aiken's  assign- 
ment was  deposited  with  Martin  as  only  a  security  for  the 
loan.  Now,  what  are  the  undoubted  facts  as  proved  by  doc- 
uments under  the  signature  of  Campbell  ?  When  he  receives 
the  money  from  Martin,  (§30,000,)  he  says:  "received  of 
Robert  Martin,  the  sum  of  thirty  thousand  dollars,"  (not  as  a 
loan,  but)  ''in  trust,  to  be  paid  this  day  to  William  Aiken," 
&ic.  When  he  delivers  the  assignment  to  Martin  on  the  1st 
September,  1849,  he  takes  no  acknowledgment  from  Martin 
that  the  assignment  is  deposited  with  him  to  secure  the  pay- 
ment of  his  debt  to  Martin,  as  he  would  have  done  if  such 
had  been  the  understanding  between  them,  but  he  accompa- 


214  APPEALS  IN  EaUITY. 

Martin  vs.  Campbell. 

iiies  the  delivery  of  it  with  a  formal  and  written  declaration, 
that  the  assignment  " /^  in  trust  for  Robert  Martin,  Esq., 
who  furnished  the  sum  of  thirty  thousand  dollars,  which  I 
paid  to  Mr.  Aiken  as  the  consideration  money  for  said 
assignment.''^  The  rest  of  this  document,  and  the  whole  of 
the  instrument  which  is  entitled  "Memorandum  of  an  agree- 
ment," &c.,  and  bearing  the  same  date,  are  full  and  explicit 
to  the  same  effect.  These  contemporaneous  documents  con- 
clusively show  that,  whatever  may  liave  been  the  motive  or 
cause  of  the  misrepresentation,  the  statement  in  Martin's 
answer  is  not  true.  The  facts  are  not  what  they  are  there 
represented  to  be.  In  the  defendant's  version  of  the  affair, 
there  is  one  circumstance  or  feature  that  it  is  impossible  to 
explain  or  reconcile.  We  are  called  on  to  believe  that  Mar- 
tin, a  man  of  experience  and  sagacity,  and  acquainted  with 
all  the  forms  of  business,  loaned  to  the  defendant  the  sum  of 
^30,000,  without  taking  from  him  a  bond,  note,  receipt,  or 
any  memorandum  in  writing,  or  evidence  of  any  kind,  to 
show  the  indebtedness,  or  the  time  and  manner  of  its  pay- 
ment. This  would  be  strange,  and  it  would  be  equally 
strange  that  Campbell  should  borrow  from  Martin  $30,000, 
and.  therewith  purciiase  well  secured  bonds,  then  worth 
$60,000,  and  immediately  execute  and  deliver  to  Martin 
instrument  after  instrument,  acknowledging  that  the  bonds 
were  purchased  with  Martin's  money,  and  in  trust  for 
Martin,  and  for  his  benefit,  and  that  he  (Campbell)  had  no 
interest  in  the  bonds,  except  ultimately  to  share  with  Martin, 
equally,  the  profits  of  the  speculation. 

There  is  another  fact,  entirely  subversive  of  the  defend- 
ant's version.  It  was  his  own  act,  and  shows  that  he  then 
had  impressions  entirely  different  from  those  he  advances  at 
the  present  time.  The  plaintiff  charges  in  her  bill,  "that  the 
said  James  B.  Campbell,  on  the  13th  June,  1851,  had  a  set- 
tlement with  the  said  Robert  Martin,  under  the  agreement 
hereinbefore  recited,  and  that  on  a  calculation  of  what  had 
been  paid  by  the  said   Robert  Martin,  on  the  said  several 


APPEALS  IN  EQUITY.  215 

Charleston,  January,  ISiJO. 

matters,  and  what  was  due  on  the  Aiken  bonds,  and  suppos- 
ing th(Mn  to  be  Hkely  to  be  ]iaid  in  full,  at  tlie  request  of  the 
said  James  1?.  Campbell,  tlie  said  Rol)ert  Martin  agreed  to 
advance  to  him  what  he  would  then  have  been  entitK^d  to 
receive,  if  the  Aiken  bonds  had  then  l)een  j)aid  in  lull  in 
cash,  and  thereupon  paid  to  the  said  James  B.  Cami)l)('ll  the 
sum  of  seventeen  thousand  four  hundred  and  thirty-five  dol- 
lars, or  thereabouts,  being  the  sum  agreed  upon  in  their 
account  stated,  in  full  of  all  further  claims,  interest  or  de- 
mands on  the  part  of  the  said  James  B,  (^Jampbell;  and  the 
said  James  B.  Campbell  gave  to  the  said  Robert  Martin  a 
receipt  for  the  said  sum,  expressed  to  be  in  full  for  all  his 
claims,  in  respect  to  the  said  agreement,  which  said  receipt, 
and  the  statement  accompanying  it,  the  said  James  B.  Camp- 
bell subsequently  obtained  from  the  agent  of  your  oratrix, 
alleging  that  it  was  necessary  to  enable  him,  the  said  James 
B.  Campbell,  to  make  up  a  statement  of  the  claim  for  the 
Master;  and  which  receipt  and  statement  he  has  never 
returned,  although  repeatedly  requested  so  to  do." 

Jos.  D.  Aiken,  a  witness  who  was  and  is  the  agent  of  the 
plaintiff,  and  who  was  examined  on  the  part  of  the  plaintiff, 
deposed  that  the  receipt  and  statement  here  spoken  of  went 
iiito  the  possession  of  Campbell  in  the  manner  charged  in  the 
bill,  and  that  he  has  never  returned  them,  though  often  applied 
to  for  that  purpose.  Campbell,  in  his  answer,  indignantly 
denies  tlie  possession  or  suppression  of  the  receipt,  or  that  he 
ever  had  possession  thereof  since  it  was  executed  and  delivered 
to  Mr.  Martin.  lint  he  says,  "  he  has  never,  at  any  time, 
denied  making  and  giving  such  a  receipt,  or  the  receipt  of  the 
money  it  called  for,  or  the  original  i)argain  and  agreement 
under  which  the  money  was  received,"  but  on  the  contrary 
has  expressly  admitted  the  same,  as  it  is  charged  in  this  bill, 
and  his  said  admissions  were  placed  on  the  file,  and  are  of 

record  in  this  Court  since  the day  of  February,  1857. 

In  another  part  of  his  answer,  speaking  of  this  lost  receipt, 
lie  says,  "  wlielher  it  is  in  existence,  and  where  it  is,  is  un- 


216  APPEALS  IN  EaUITY. 

Martin  vi.  Campbell. 

known  to  this  defendant,  and  is  of  no  consequence  whatever, 
because  he  readily  admits,  and  has  always  admitted  its  full 
purport  and  original  intention  as  cliarged  in  the  bill,"  but  he 
denies  that  it  is  of  force  except  as  an  acknowledgment  for  the 
amount  of  money  received  by  him. 

I  am  unable  to  perceive  why  this  receipt,  and  the  state- 
ment accompanying  it,  should  not  be  considered  "of  force" 
for  what  they  purport.  I  have  read  with  care  and  attention 
the  defendant's  statement  of  this  transaction,  as  set  forth  on 
the  fifth  page  of  the  printed  copy  of  his  answer,  and  see 
nothing  there  that  should  have  the  effect  of  invalidating 
them;  on  the  contrary,  I  feel  surprised  that,  admitting  these 
facts,  the  defendant  should  imagine  that  he  could  successfully 
resist  the  plaintiff's  version  of  the  transaction.  Here,  as  late 
as  the  13th  June,  1851,  we  have  the  parties  making  a  compu- 
tation and  statement,  in  exact  conformity  with  the  terms  of 
the  contract,  as  set  forth  in  the  instrument  bearing  date  Sep- 
tember 1st,  1849;  and  assuming  that  the  Aiken  bonds  were 
fully  secured  and  would  eventually  be  paid  in  full,  they  make 
a  calculation  of  the  amount  that  would  be  coming  to  Camp- 
bell, according  to  the  terms  of  the  contract;  and  finding  that 
it  would  be  $17,435,  or  thereabouts,  Martin  paid  that  sum  to 
Campbell,  and  became  the  purchaser  of  all  Campbell's  share 
and  interest,  and  took  a  receipt  for  that  sum  from  Campbell, 
"expressed  to  be  in  full  of  all  his  claims  in  respect  of  the 
said  agreement."  Though  on  this  occasion  Campbell  was 
content  to  take  ot^e-half  of  the  profits  of  the  speculation, 
according  to  the  express  terms  of  the  agreement,  yet  in  his 
answer  to  this  bill,  he  contends  that  the  written  statement  of 
the  contract  prepared  by  himself  does  not  contain  the  true 
stipulations  between  them,  and  that  he  (Campbell)  was  the 
borrower  of  the  $30,000,  and  the  true  owner  of  the  bonds, 
and  that  the  assignment  was  deposited  with  Martin  only  as 
a  pledge  for  the  debt  due  to  him  by  Campbell. 

But  it  is  said  that  this  settlement,  as  well  as  the  terms  of 
the  contract,  were  repudiated  by  Martin.     It  is  to  be  remark- 


APPEALS  IN  EaUITY.  2)7 

Charleston,  January,  1860. 

ed,  that  this  idea  of  repudiation  is  inconsistent  with  the  other 
ground  assumed,  that  Campbell  was  the  owner  of  the  bonds, 
and  Martin  only  tiie  lender  of  the  purchase  money.  But 
where  is  the  evidence  that  Martin  repudiated  anything;  either 
the  terms  of  the  contract,  or  the  settlement?  It  is  said, 
he  held  on  to  Bennett's  guaranty.  But  that  was  given  as  a 
security  to  Martin  for  his  cuflorsement  of  Campbell's  note  in 
bank.  But  he  still  held  possession  of  it,  after  the  note  in 
bank  was  paid.  Still,  where  is  the  evidence  that  Martin  ever 
refused  to  deliver  it  up  ?  What  witness  has  said  that  Martin's 
continued  possession  of  it  was  anything  more  than  an  acci- 
dental and  involuntary  detention  ?  But  suppose  it  was  other- 
wise; I  cannot  conceiv(!  what  bearing  it  has  on  this  question. 
The  evidence,  then,  in  support  of  the  defendant's  views, 
has  narrowed  down  to  Martin's  statement  in  his  answer  to 
Tucker's  bill.  But  why  should  Martin  be  unwilling  to  occu- 
py so  favorable  a  position  as  that  which  he  held  as  the  true 
owner  of  the  Aiken  bonds,  and  take  the  position  of  the  lender 
of  money  on  the  security  of  these  bonds;  and  that  too  just  at 
the  time  when  he  was  about  to  realize  the  fruition  of  his  spe- 
culation ?  The  answer  to  Tucker's  bill  was  posterior  to  the 
settlement  of  June  13,  1S51.  It  was  then  reduced  to  a  cer- 
tainty, that  these  bonds  of  Hunt  would  be  paid,  and  if  so, 
Martin  would  realize  a  very  handsome  speculation.  What 
Campbell  has  said  in  his  answer  to  the  plaintifl's  bill,  in  refer- 
ence to  this  transaction,  must  be  born  in  mind.  "  In  June, 
1S51,  he  (Martin)  was  endorser  of  this  defendant  to  a  consid- 
erable amount,  which  had  been  discounted  in  bank.  On  or 
about  the  I3th  day  of  that  month,  as  stated  in  the  bill,  this 
defendant  being  about  to  leave  the  city  for  the  North,  and 
desiring  to  cancel  said  letter  of  credit  (that  of  Bennett)  by  dis- 
charging Mr.  Martin  from  his  said  indorsements;  and  //ic  claim 
against  Col.  Hunt  having  been  finally  adjusted  so  that  there 
appeared  no  reason  to  expect  litigation  or  difficulty  in  receiv- 
ing payment  from  Col.  Hunt's  property;  in  due  course  of 
time,  he  suggested  to  Mr.  Martin  to  become  the  purchaser  of 


218  APPEALS  IN  EaUITY. 

Martin  vs.  Campbell. 

his  whole  interest  in  said  bonds  and  securities."  Jit  this 
time,  when  the  profits  of  what  had  heretofore  been  a  rather 
hazardous  speculation  were  in  his  grasp — his  claim  being 
based  npon  the  most  palpable  basis  of  a  written  contract, 
with  no  uncertainty  about  it — we  find  him  repudiating  all 
this,  and  taking  the  position  of  a  creditor  who  has  loaned  out 
his  money  at  interest.  His  statement  of  his  relations  with 
Campbell,  in  that  answer,  in  my  judgment,  was  incidental, 
without  deliberation  and  attention.  It  was  not  the  direct 
question  at  issue  there.  He  was  answering  what  he  and 
Campbell  both  seemed  to  consider  the  pragmatical  interfer- 
ence of  Tucker.  His  attention  was  directed  not  to  the 
question,  what  were  his  relations  with  Campbell  ?  but  to 
what  were  his  relations  with  Tucker?  His  answer  was  pre- 
pared lor  him  by  one  in  whom  he  reposed  the  most  implicit 
confidence.  There  is  no  evidence  (and  Campbell  himself 
does  not  say)  that  Martin  gave  instructions  for  the  prepara- 
tion of  his  answer.  Nobody  but  Campbell  says  that  it  was 
read  to  him,  and  Campbell  is  not  a  competent  witness  on  this 
point.  There  is  pretty  strong  negative  evidence  that  it  was 
not  read  to  him.  Under  these  circumstances,  and  without 
considering  the  imbecile  state  of  Martin's  body  and  mind  at 
the  time  the  answer  was  sworn  to,  (to  which  I  will  presently 
advert,)  I  would  say  that  the  statement  in  the  answer  would 
not  be  sufficient  to  invalidate  or  destroy  the  evidence  of  a 
contract  otherwise  so  clearly  proved. 

]3ut  Martin  was,  at  the  time  of  his  signing  the  answer,  ill 
in  body  and  mind.  Campbell  himself  says  he  was  in  feeble 
health.  Dr.  Geddings  and  Dr.  Bellinger,  his  physicians,  were 
examined  in  reference  to  the  state  of  his  mine}.  His  disease 
was  ramonllissement,  or  softening  of  the  brain.  The  effect 
of  the  disease  is  gradually  to  undermine  the  understanding. 
His,  eventually,  became  totally  prostrate.  But  at  the  date  in 
question  his  mental  faculties,  thongh  not  entirely  in  rnin, 
were  very  much  impaired.  He  would  certainly  not  be  able 
to  comprehend  any  complex  matter  of  business.     He  could 


APPEALS  IN  EaUlTY.  219 


Charleston,  January,  1S60. 


have  been  imposed   on.     He   would   not  have  been  able  to 
give  strong  attention  to  any  transaetion. 

My  opinion  is,  that  Martin's  mind,  at  the  time  he  signed 
his  answer  to  Tucker's  bill,  was  impaired  to  such  an  extent, 
that  lie  did  not  comprehend  the  full  import  of  the  language 
of  the  answer,  if  it  was  read  to  him.  If  this  be  a  correct 
conclusion,  it  removes  every  seeming  difficulty  in  the  way  of 
granting  the  plaintiff  the  relief  which  she  seeks. 

The  judgment  of  the  Court  is,  that  the  contract  between 
the  defendant  and  the  plaintiff's  testator  was,  and  is,  that 
which  is  embodied  and  expressed  in  the  receipt  of  the  de- 
fendant to  the  plaintiff's  testator,  bearing  date  the  first  day  of 
September,  1S49,  and  the  memorandum  of  the  agreement, 
bearing  the  same  date;  that  is  to  say,  the  assignment  of 
Aiken  of  the  two  bonds  of  B.  F.  Hunt  was  in  trust  for 
Robert  Martin,  and  that  Campbell  became  invested  with  the 
legal  estate  in  the  said  bonds  as  trustee  of  Martin,  and  for  his 
benefit;  that  by  the  terms  of  the  agreement,  Martin  was  to 
be  reimbursed  for  his  money  advanced,  with  interest  thereon 
from  the  2Sth  August,  1849,  that  the  balance  of  money  which 
should  be  collected  on  said  bonds  after  all  expenses  were 
paid,  in  other  words,  the  net  profits,  were  to  be  equally 
divided  between  Martin  and  Campbell.  And  it  is  further 
adjudged  that  there  is  no  sufficient  reason  to  believe  that  this 
contract  was  ever  cancelled  or  modified;  that  it  is  still  bind- 
ing upon  the  parties,  and  that  the  account  between  them  is 
to  be  taken  accordingly.  It  is  ordered  and  decreed,  that  an 
account  be  taken  before  one  of  the  masters,  for  the  monies 
that  have  come  into  the  hands  of  both  Martin  and  Campbell 
from  the  Richfield  plantation,  before  the  same  was  sold, 
according  to  the  agreement  between  B.  F.  Hunt  and  James 
B.  Campbell,  dated  1st  October,  1S49. 

It  is  further  ordered  and  decreed,  that  from  the  receipts  of 
money  arising  from  the  sale  of  ])rodtice  from  Richfield,  and 
from  the  proceeds  of  the  sale  of  Richfield  and  the  negroes 
thereon,  the  said  Robert  Martin  in  the  account  to  be  taken,  is 


220  APPEALS  IN  EaUITY. 

Martin  vs.  Campbell. 

entitled  to  be  reimbursed  for  the  money  which  he  advanced 
and  paid  on  the  debt  due  to  Mary  Legare,  and  interest 
thereon  till  the  time  of  such  reimbursement;  and  in  like 
manner  the  said  Robert  Martin  in  the  account  to  be  taken, 
is  entitled  to  be  reimbursed  for  the  money  advanced  and  paid 
on  the  debt  of  Byrd,  Savage  &  Byrd,  with  interest  on  the 
same  from  the  time  of  its  being  paid  and  advanced,  till  the 
time  of  its  reimbursement. 

It  is  further  ordered  and  decreed,  that  the  said  Robert 
Martin,  or  his  legal  representative,  from  the  proceeds  of  the 
sale  of  Richfield,  and  the  mortgage  of  negroes  thereon,  is 
entitled  to  be  refunded  the  sum  of  thirty  thousand  dollars, 
which  he  advanced  in  the  purchase  of  the  said  bonds,  with 
interest  thereon  from  the  2Sth  August,  1849,  according  to  the 
agreement  as  hereinbefore  adjudged. 

It  is  further  ordered  and  decreed,  that  the  receipt  of  Camp- 
bell of  the  13th  June,  1851,  is  a  bar  to  any  claim  on  his  part 
to  his  moiety  or  share  of  the  profits,  stipulated  for  by  the  said 
agreements,  he  having  for  valuable  consideration  sold  and 
assigned  to  the  said  Robert  Martin  all  his  claim,  interest  and 
share  in  the  said  bonds,  assigned  by  Aiken  as  aforesaid.  It 
is  ordered  and  decreed,  that  the  sum  of  $17,435,  paid  by  the 
said  Martin  to  the  said  Campbell  was  in  full,  and  intended  to 
be  in  full  of  all  his  claim  and  share  in  the  said  bonds;  so 
that  the  whole  amount  of  said  bonds  became  the  property  of 
the  said  Robert  Martin,  and  so  far  as  the  same  was  not  paid 
to  him  in  his  lifetime,  it  is  now  due  and  payable  to  his  legal 
representative,  the  plaintiff  in  this  suit. 

It  is  further  ordered  and  decreed,  that  in  stating  the  ac- 
counts, all  charges  and  fees,  or  compensation  for  services 
rendered  by  the  said  Campbell  in  and  about  the  prosecution 
and  collection  of  the  said  bonds,  are  disallowed  ;  first,  be- 
cause such  was  the  stipulation  in  the  original  agreement  as 
expressed  in  the  instrument  bearing  date  the  1st  September, 
1849,  and,  secondly,  because  the  payment  and  receipt  of  the 
13th  June,  1851,  is  a  bar  to  any  such  account  or  claim. 

It  is  further  ordered  and  decreed,  that  James  B.  Campbell 


APPEALS  IN  EaUITY.  221 

Charleston,  January,  ISGO. 

do  account  for  all  the  money  which  has  come  into  his  hands 
on  account  of  the  assignment  hj''  William  Ailcen  to  him  of 
said  bonds,  at  any  time  from  the  date  of  said  assignment  to 
the  present  time,  whether  the  same  be  from  the  proceeds  of 
the  sale  of  produce  from  Richfield  under  the  agreement 
between  himself  and  B.  F.  Hunt  of  the  1st  October,  1849,  or 
from  the  proceeds  of  the  sale  of  Richfield  and  the  negroes, 
and  that  so  far  as  the  same  have  come  into  his  hands,  he  do 
on  an  account  stated  upon  the  principles  of  this  decree,  pay 
to  the  plaintiff  the  balance  so  found  to  be  due  to  her,  and  that 
so  far  as  there  be  any  balance  due  to  the  plaintiff  in  the 
hands  of  the  master  arising  from  said  bonds,  upon  an  account 
staled  according  to  the  principles  of  this  decree,  the  said 
master  do  pay  the  same  to  plaintiff. 

It  is  further  ordered  and  decreed,  that  the  defendant  pay 
the  costs  of  this  suit. 

The  defendant  appealed  upon  the  grounds: 

1.  The  Chancellor  has  entirely  misconceived  the  issue 
made  by  the  pleadings,  and  upon  this  misconception  the 
decree  is  predicated  ;  the  same  will  appear  by  comparison  of 
the  pleadings  with  the  following  extract  from  the  decree: 

"The  only  controversy  between  the  parties,"  says  the 
Chancellor,  "  is  whether,  in  respect  to  the  Aiken  bonds,  the 
plaintiffs  testator  was  the  owner  of  said  bonds,  and  Campbell 
the  agent  and  trustee,  with  the  right  to  one  moiety  of  the 
balance  realized  after  Martin  was  reimbursed  for  his  ad- 
vances and  interest;  or  whether  Campbell  is  the  owner  of 
the  bonds,  with  only  a  pledge  of  the  same  to  Martin,  to 
secure  him  for  the  money  he  had  advanced  for  their  pur- 
chase. 

"  If  we  accept  the  defendant's  version  of  the  transaction, 
he  is  entitled  to  the  whole  of  the  clear  profits  of  the  specula- 
lion,  amounting  to  $34,000  or  $35,000,  and  Martin  is  only  to 
b3  reimbursed  for  his  advances  and  interest,  lint,  by  the 
plaintiffs  statement,  the  defendant  is  only  entitled  to  one-half 
the  profits,  and  Martin  to  the  other  half." 


222  APPEALS  IN  EaUlTY. 

Martin  vs.  Campbell. 

The  defendant  humbly  submits  that,  by  an  inspection  of 
the  pleadings,  the  version  of  the  transaction  here  above 
charged  upon  iiim  will  nowhere  appear,  but  the  contrary  that 
he  claims  exactly  that  which  the  Chancellor  erroneously  puts 
down  as  (he  plaintiff's  statement  of  the  case. 

2.  The  defendant,  so  far  from  meaning  or  claiming,  as  the 
Chancellor  supposes,  that  the  contract  of  September  1st, 
1849,  was  afterwards  abandoned  or  modified,  on  the  contrary, 
throughout  the  pleadings,  insists  that  it  is  subsisting  and 
binding,  wliile  the  plaintiff"  claims  that  it  has  been  aban- 
doned, and  that  defendant  has  no  longer  any  rights  under  it. 

3.  The  Chancellor  entirely  misconceives  the  purpose  of  the 
defendant,  in  supposing  that  Mr.  Martin's  answer  to  the  bill 
of  John  H.  Tucker  was  introduced,  or  relied  upon,  to  show 
that  the  original  agreement  of  September  1st,  1849,  had  been 
modified,  changed,  or  abrogated,  or  for  any  other  purpose 
than  to  establish  said  agreement,  and  to  show  that  Mr.  Martin 
did  not,  at  that  time,  consider  himself,  as  is  now  claimed  by 
the  complainant,  the  sole  owner  of  the  Aiken  bonds;  and 
that  Mr.  Jos.  D.  Aiken,  the  son-in-law  of  Mr.  Martin,  who,  as 
a  magistrate,  procured  liis  signature  and  oath  to  the  answer, 
and  was  Mr.  Martin's  general  and  confidential  agent,  at  that 
time,  did  not  consider  Mr.  Martin  as  the  sole  owner.  That 
if  Mr.  Martin  had  considered  the  inchoate  agreement  of  the 
13th  June,  IS51,  as  existing  at  the  time,  he  could  not  have 
answered  as  he  did,  nor  could  Mr.  Jos.  D.  Aiken,  as  a  magis- 
trate, have  taken  his  signature  and  oath  to  the  answer,  if  lie 
had  then  taken  the  same  views,  either  of  Mr.  Martin's  imbe- 
cility, or  of  Mr.  Campbell's  relations  to  the  bonds,  which  he 
now  testifies  to. 

4.  The  only  controversy  in  issue  between  the  parties,  made 
by  the  pleadings  and  tried,  was,  whether  the  agreement  of 
September  1st,  1849,  between  Mr.  Martin  and  the  defendant, 
is  of  force.  The  defendant  claims  that  it  is,  and  that  at  the 
proper  time,  when  called  upon,  he  ought  to  account  accord- 
ingly. 

The  complainant  denies  this,  and  claims  that  the  defend- 


APPEALS  IN  EaUlTY.  223 

Charleston,  January,  1860. 

ant  sold  out  on  the  13ih  June,  1851,  and  from  that  date  liad 
no  interest  in  the  Aiken  bonds.  That  the  money  then  re- 
ceived by  the  defendant  is  to  be  considered  as  a  payment  in 
fnll,  and  not  as  a  loan  or  advance. 

5.  If  the  complainant's  view  is  adopted,  and  the  agree- 
ment of  the  1st  September,  1849,  is  to  be  considered  extin- 
guished, then  the  defendant  is  entitled  to  reasonable  compen- 
sation for  his  services  from  June,  1851  ;  and  the  defendant, 
also,  appeals  from  that  part  of  the  decree  which  disallows 
such  compensation, and  also  excludes  him  from  participation 
in  the  profits  derived  from  his  services;  he  is  entitled  to  one 
or  the  other. 

McCrady,  Richardson^  for  appellant. 

Simons,  contra. 

The  opinion  of  the  Court  was  delivered  by 

Johnston,  Ch,  The  issue  between  these  parties  was  not, 
as  the  Chancellor  seems  to  have  conceived,  whether  the  pur- 
chase of  Aiken's  bonds  was  made  by  Campbell,  for  his  own 
benefit,  by  means  of  money  borrowed  from  Martin.  It  was 
never  denied  by  Campbell,  that  though  the  purchase  made 
in  August,  1849,  was  in  his  name,  and  ostensibly  to  his  nse, 
'  it  was  made  on  the  joint  account  of  himself  and  Martin. 
This  he  took  pains  to  put  beyond  doubt,  in  September,  1849, 
in  an  unequivocal  declaration,  that  the  speculation  was  in 
trust  to  reimburse  Martin  for  his  outlay,  and  then  to  divide 
the  net  profits  between  the  two:  Campbell's  services  to  be 
gratuitous. 

Nor  was  it  denied  that  in  June,  1851,  Campbell  sold  his 
share  of  the  profits  to  Martin,  at  a  stipulated  price;  or  that 
he  gave  a  receipt  for  the  sum  paid. 

This  bargain  is  not  denied  by  Campbell,  though  he  does 
deny  that  he  got  at  the  receipt — a  matter  of  very  little  conse- 
quence, since  its  loss  or  disappearance  could  not,  under  his 
fair  adinissions,  occasion  any  material  injury. 

The  real  contest  between  the  parties  is,  whether,  after  the 


224  APPEALS  IN  EaUITY. 

Martin  vs.  Campbell. 

bargain  of  June,  1851,  was  made,  it  was  repudiated  by  Mar- 
tin, as  Campbell  inferred  from  his  conduct. 

There  is  no  proof  of  this  repudiation.  It  would  not  do  to 
say,  had  Campbell  expressly  avowed  the  fact,  that  it  should 
be  assumed  without  proof. 

It  is  contended  that  the  proof  is  to  be  found  in  Campbell's 
answer  to  Mrs.  Martin's  petition,  which  is  said  to  have  been 
given  in  evidence  in  the  present  cause.  But  supposing  proof 
can  be  made  in  this  collateral  way,  out  of  the  defendant's 
answer  in  another  cause,  such  answer  is  only  prima  facie, 
and  not  conclusive,  and  is  evidence  according  to  the  mean- 
ing to  be  obtained  by  a  proper  construction  of  it:  and  Mr. 
Campbell's  answer  is  not,  substantially,  in  the  nature  of  a 
positive  averment  of  the  fact  of  repudiation,  but  rather  that 
from  Martin's  equivocal  conduct,  Campbell  understood  him 
to  intend  to  repudiate,  and  concluded,  as  it  would  not  mate- 
rially vary  their  relative  interests,  to  make  no  opposition. 

We  are  to  conclude,  then,  that  the  contract  of  June,  1851, 
remained  of  force  ;  and  that  being  the  case,  we  do  not  per- 
ceive that  the  results  attained  by  the  Chancellor  are  erron- 
eous. 

Mr.  Aiken  (Joseph  D.)  proves  that  in  the  receipt  given  by 
Campbell,  he  agreed  to  continue  his  services  in  winding  up 
the  business  gratuitously.  The  same  result,  it  appears  to  us, 
would  have  followed  had  that  special  provision  been  omitted 
in  the  receipt.  The  concern  must  be  wound  up:  Campbell 
had  an  interest  (being  accountable  for  what  he  had  received, 
and  for  his  contracts  with  third  persons)  in  winding  it  up;  to 
say  nothing  of  his  claim  of  the  Mathews'  bonds;  and,  there- 
fore, was  under  a  necessity  to  continue  his  attention  to  the 
business. 

It  is  ordered  that  the  appeal  be  dismissed,  and  the  decree 
affirmed. 

O'Neall,  C.  J.,  AND  Wardlaw,  J.,  concurred. 
Appeal  dismissed. 


APPEALS  IN  EaUITY.  225 


Cliarleistoii,  January,  1860. 


Jacob  F.  Moorer  vs,  Jacob  Kopmann. 
Specific  Performance. 

A  and  B  agreed  as  follows:  A  agreed  to  make  title  to  B  for  a  certain  plantation, 
and  to  pay  him  $2,000,  and  B  agreed  to  make  title  to  A  (or  certain  lots  in 
Charleston,  and  each  hound  himself,  in  case  of  his  refusal  or  failure  to  coniply, 
10  pay  to  the  other  '"$1,000,  with  all  costs  and  charges,  as  damages  sustained 
for  noii-oompliaiice  on  his  part."  A  delivered  possession  of  the  plantation  to 
B,  and  tendered  hini  the  $2,000  and  interest.  B  retained  possession  of  the 
plantation,  and  refused  to  comply  wiih  his  part  of  the  agreement.  Held,  that 
notwithstanding  the  agreement  to  pay  $2,000  as  damages,  A  was  entitled  to  a 
decree  for  specilic  performance  of  the  agreement. 

BEFORE  WARDLAW.  CH.,  AT  CIIARLE.STON,  FEBRUARY,  1859. 

This  case  will  be  .sulUciently  understood  from  the  circuit 
decree,  and  the  copy  of  the  agreement.  The  circuit  decree 
is  as  follows : 

Wardlaw,  Ch.  This  is  a  bill,  by  the  vendor,  for  the  spe- 
cific performance  of  defendant's  agreement  to  conclude  a 
trade  for  the  purchase  of  the  plantation  called  the  Mims' 
tract. 

On  the  fifteenth  day  of  March,  eighteen  hundred  and  fifty- 
eight,  the  parties  entered  into  an  agreement,  under  seal, 
whereby  Jacob  F.  Moorer,  in  consideration  of  a  clear  and 
unencumbered  title  to  certain  lots  of  land,  and  the  buildings 
thereon,  in  the  City  of  Charlestoti,  on  the  west  of  King  street, 
and  north  of  Rodgers'  alley,  containing  sixty-four  feet  deep 
on  King,  and  two  hundred  feet  deep  on  the  north  side  of 
Rodgers'  alley,  to  be  made,  duly  executed  and  delivered  to 
him,  by  Jacob  Kopmann,  covenanted  and  agreed  to  sell  and 
convey  to  the  said  Jacob  Kopmann,  a  tract  of  land  known  as 
the  Miins'  tract,  in  St.  James  Goose  Cr.^ek  parish,  Charles- 
ton district,  containing  about  twelve  hundred  acres,  more  or 
less;  and,  also,  to  pay  the  said  Jacob  Kopmann,  on  his  bond 
16 


236  APPEALS  IN  EaUITY. 

Moorer  vx.  Kopmann. 

to  E.  H.  Rodgers,  two  tlionsand  dollars,  the  said  bond  being 
secured  by  a  mortgage  of  the  two  houses  and  lots  in  King 
street. 

If  either  party  to  the  said  agreement  should  refuse  or  fail 
to  make  a  good  and  unencumbered  title,  it  is  agreed  that  he 
shall  be  bound  to  pay  the  other  one  thousand  dollars,  with 
all  costs  and  charges,  as  damages  sustained  for  non-com- 
pliance.* 

•STATE  OF  SOUTH  CAROLINA. 

Articles  of  Agreeinevt  heticeen  J.  F.  Moorer  and  Jacob  Kopmann. 

Whereas,  I,  J.  F.  Moorer,  do  hereliy  ngree,  and  liiiu!  my  heirs,  ndininistrators 
and  assigns,  to  make  the  above-named  Jacob  Kopmann,  a  clear  and  imenunm- 
bered  title  to  a  piece,  parcel,  or  tract  of  land,  icnown  by  the  name  of  the  Mims' 
tract,  situated,  lying,  and  being  in  St.  James  Goose  Creek  parish,  Charleston 
district,  and  State  aforesaid,  conlniiiing  about  twelve  binidred  acres,  more  or 
less;  and  1  further  agree  to  pay  said  Kopmann.  on  his  bond  in  favor  of  E.  H. 
Rodgers,  two  thousand  ($2,000)  dollars,  secured  l>y  a  mortgage  on  two  houses 
and  lots,  on  the  west  side  of  King  street,  and  north  and  binding  on  Rodgers' 
alley,  containing  sixty-four  (64)  feet  front  on  King  street,  and  two  hundred  (200) 
feet  deep,  and  binding  on  the  north  side  of  Rodgers'  alley,  be  the  same  more 
or  less;  and  should  I,  .T.  F.  Moorer,  refuse  or  fail  to  comply  to  make  the  above- 
named  title  to  said  Jecob  Kopmann,  I  do  hereby  bind  myself,  my  heirs  and 
assigns,  to  pay  the  aforesaid  Jacob  Kopmann,  one  thousand  ($1,000)  dollars, 
with  all  costs  and  charges,  as  damages  sustained  for  non-compliance  on  my 
part. 

Whereas,  T,  Jacob  Kopmann,  do  hereby  agree  and  bind  my  heirs,  administra- 
tors and  assigns,  to  make  the  above-named  J.  F.  Moorer,  a  clear  and  unencum- 
bered title  to  the  above-named  lots,  with  all  the  btiildings  thereon,  situated, 
lying,  and  being  in  the  City  of  Charleston  and  Stale  atbresaid,  west  of  King  and 
north  of  Rodgers'  alley,  conlainiiig  sixty-four  (01)  feel  front  on  King,  and  two 
hundred  (200)  feet  deep  on  the  iiortli.  binding  on  said  Rodders'  alley;  ami  should 
I,  Jacob  Kopmann,  rel'iise  or  I'ail  to  comply  to  make  the  above-named  title  to 
said  J.  F.  Moorer,  I  do  hereliy  l)ind  myself,  my  heirs  and  assigns,  to  pay  the 
aforesaid  J.  F.  Moorer,  one  thousand  ($1,000)  dolliirs,  with  all  costs  and  charges, 
as  damages  sustained  for  non-compliance  on  my  part. 

Given  under  our  hand  and  seal,  this,  the  tilteenth  day  of  March,  in  the  year 
of  our  Lord  one  thousand  eislit  hundred  and  lirty-eight,  and  in  the  eighty-second 
year  of  the  Independence  of  the  L-uiled  Slates  of  America. 

(Signed)  JACOB  KOPMANN,  [l.s.] 

(Signed)  J.  F.  MOORER,  [l.s.] 

Signed,  sealed,  and  delivered, 

in  the  presence  of 

(Signed)  J.  A.  Snklt-, 

(Signed)  Geosge  Addison. 


APPEALS  IN  EaUITY.  227 

Charleston,  January,  18fi0. 

The  plaintiff,  in  pursuance  of  said  agreement,  made  all 
necessary  preparations  for  the  performance  thereof;  delivered 
possession  of  the  said  tract  of  land  in  St.  James'  parish  to 
the  defendant,  and  tendered  him  $2,000,  with  a  deed  of  con- 
veyance of  the  Minis'  tract.  Whereupon,  the  plaintiff  was 
informed  hy  the  solicitors  of  the  defendant,  in  a  note  which 
is  in  evidence,  that  the  said  Jacoh  Kopniann  could  not  per- 
form his  agreement  to  procure  a  clear  and  good  title  to  the 
property  in  King  street,  the  wife  of  the  defendant  having 
refused  to  renounce  her  right  and  claim  of  dower;  and  that 
the  defendant  was  thus  prevented  from  performing  his  con- 
tract, and  refused  to  pay  the  penalty  imposed  upon  liim  for 
the  breach  of  his  agreement. 

If  a  plaintiff  presents  a  case  prima  facie  good,  as  this 
appears  to  l)e,  he  is  entitled  to  a  decree  for  s]iecific  perform- 
ance, unless  the  defendant  can  prove  that  this  would  he 
inequitable.  Much  less  evidence  is  necessary  to  induce  the 
Court  to  leave  the  parties  where  it  finds  them,  than  to  annul 
an  agreement  in  writing,  under  seal.  And  there  is  a  great 
difference  in  the  position  of  a  plaintiff  seeking  to  sot  aside  a 
contract,  and  a  defendant  resisting  specific  performance. 
There  is,  in  this  case,  no  evidence  to  prove  accident,  mis- 
take or  fraud,  affecting  tlie  interest  of  the  defendant.  This 
was  an  agreement  for  the  sale  of  an  old  settled  plantation,  in 
the  District  of  Charleston,  witii  facility  of  access  to  the  city. 
The  defendant  had  all  the  necessary  means  of  knowledge, 
and  made  the  contract  after  he  |)ossessed  them.  There  is  no 
evidence  of  any  description  of  the  property  outside  of  that 
in  the  agreement.  No  misreprescnlaiiou  on  the  part  of  the 
plaintiff  has  been  proved.  Nor  does  it  appear  that  there  was 
any  mistake  on  the  part  of  the  purchaser,  as  to  the  quality 
and  location  of  the  Mims'  tract,  which  he  knew  to  be  a 
plantation  in  the  low  country.  He  lived  for  more  than  a 
year  within  a  few  miles  of  it.  After  paying  two  visits  to  the 
place  in  the  country,  subsequently  to  the  trade,  he  returned 


22S  APPEALS  IN   EQUITY, 

Moorer  vs.  Kopmann. 

to  Charleston   and  expressed  his  satisfaction   with   the  pur- 
chase. 

This  Court  cannot  release  the  defendant  from  obligation  to 
perform  a  lawful  contract,  because  of  his  carelessness  or 
neglect  to  use  the  knowledge  in  his  possession,  and  to 
acquire  additional  information  if  he  desired  it. 

With  the  facts  in  evidence,  it  is  a  necessary  and  natural 
conclusion,  that  the  vendee  acted  upon  his  own  judgment  in 
making  this  trade.  The  perfect  indifference  maniftisted  by 
him  to  the  usual  and  easy  means  of  information,  his  neglect 
to  examine  the  property  for  himself,  or  to  get  a  description  of 
it  from  others,  and  his  anxiety  to  hasten  and  conclude  the 
contract,  certainly  is  enough  to  place  him,  as  to  matters 
within  the  reach  of  his  own  observation,  in  the  condition  of 
one  who  purchases  on  his  own  judgment,  without  reliance 
on  the  statements  of  the  vendor.  He  miglit  have  protected 
himself  from  the  consequences  of  his  negligence,  by  exact- 
ing explicit  and  unequivocal  warranty  or  representation  from 
the  vendor ;  but  this  has  not  been  done.  As  regards  the 
quality  and  value  of  the  land,  the  evidence  of  several  wit- 
nesses residing  near  the  place  represents  it  as  some  of  the 
best  high  land  and  swamp  in  that  part  of  the  country,  which 
section  is  thickly  settled. 

The  overseer,  employed  by  the  defendant  to  occupy  and 
cultivate  the  plantation  during  the  last  year,  raised  a  crop 
upon  it,  and  testifies  to  the  same  effect.  The  defendant  has 
failed  to  perform  his  part  of  the  agreement.  He  has  declared 
his  inability  to  procure  and  deliver  to  the  plaintiff  a  clear 
and  good  title  to  the  property  in  Charleston.  He  has  refused 
to  pay  the  penalty  for  the  breach  of  his  agreement.  He  has 
held  possession  of  the  plantation  in  St.  James'  parish,  and 
the  two  houses  and  lots  in  King  street,  since  the  conclusion 
of  the  trade.  Since  the  filing  of  this  bill,  he  has  made  a 
confession  of  judgment  to  McKenzie,  Cadow  &  Co.,  and  also 
executed  an  assignment  for  the  benefit  of  his  creditors, /?e;i- 
dente  lite. 


APPEALS  IN  EaUITY.  229 

Charleston,  January,  l8t)0. 

I  am  of  opinion  that  the  contract  of  sah^  is  made  in  proper 
form,  is  fair,  certain,  upon  sufficient  consideration,  free  from 
accident,  mistake  or  fraud,  and  in  every  respect  lawful  and 
binding  at  this  time;  and  that  the  jjlainlilf  is  entitled  to  have 
specific  performance  of  the  defendant's  agreement  for  the 
purchase  of  the  Minis'  tract. 

It  is  ordered  and  decreed,  that  Jacob  Kopmann,the  defend- 
ant, shall  jirocure  and  deliver  to  Jacob  F.  Moorer,  the  ]ilain- 
tiff,  a  good  and  clear  title  to  the  t\vc»  lots  of  land  in  King 
street,  described  in  the  agreement;  and  that  he  shall  pay  rent 
for  the  same  to  the  plaintiff,  from  the  date  of  the  tender  of 
the  price;  and  it  is  referred  to  Mr.  Tupjier,  one  of  the  mas- 
ters of  this  Court,  to  report  the  amount  of  rent  due  for  tlie 
use  and  occupation  of  the  said  premises. 

And  if  the  defendant  shall  fail  to  [irocure  the  renunciation 
of  dower,  the  master  shall  report  an  assessment  for  the  saiue, 
as  a  proper  amount  to  be  deducted  from  the  purchase  money 
of  the  said  property.  And  the  i>laintifF  shall  tender  to  the 
defendant  two  thousand  dollars,  within  one  month  from  the 
dale  of  this  decree,  on  pain  of  having  his  bill  dismissed  ; 
and  the  defendant  shall  pay  the  rent  due  to  the  plaintiff  at 
the  time  of  such  payment.  The  deed  of  conveyance  of  the 
Mims'  tract,  introduced  in  evidence, shall  be  delivered  to  the 
defendant,  so  soon  as  he  shall  procure  and  deliver  to  the 
plaintiff  a  good  title  to  the  two  lots  in  King  street. 

The  costs  of  these  proceedings  shall  be  paid  by  the  de- 
fendant. 

Note. — A  vendor  may  sustain  a  bill  for  specific  perf(um- 
ance.  Gregorie  vs.  B\ihw^  Rich.  Eq.  (3a.,  235.  Inadecjuacy 
of  consideration,  without  fraud,  is  not  sufficient  to  prevent 
the  enforcement  of  a  contract.  Sarter  vs.  Gordon,  2  Hill  Ch., 
121. 

Defendant  cannot  take  advantage  of  his  own  carelessness 
or  neglect.  O/r/Jieh/  vs.  Round,  5  Ves..  503  ;  EUard  vs.  Lan- 
duff,  I  Ball  &  B.,  249. 


230  APPEALS  IN  EaUITY. 

Moorer  vs.  Kopmann. 

Equity  regards  not  the  form,  but  the  substance  of  the 
agreenjent.  2  Story  Eq.,  §  715,  751  ;  2  Powell  on  Contra., 
167  ;  Howard  vs.  Hopkins  ;  2  Atkyns.  3S7,  [371.] 

Tiie  intention  of  the  parties  is  the  rule  of  construction. 
Batten  on  Spec.  Perf,  270,  271. 

In  cases  of  covenants,  especially  when  fraudulent  misrep- 
resentations occur  in  the  making  or  execution  of  such  con- 
tracls,  the  Court  of  Equity  exercises  a  concurrent  jurisdiction 
witli  the  Couits  of  Law.     2  Powell  on  Con.,  11. 

One  of  the  parties  to  a  contract  being  by  liiniself  incapable 
of  performing  it,  furnislies  no  ground  for  dispensing  with 
specific  execution.     2  Powell  on  Con.,  167. 

The  defendant  appealed  on  the  grounds: 

1.  Because  the  parties  having,  themselves,  settled  the  mea- 
sure of  damages,  and  tlie  method  of  redress,  for  the  non-ful- 
filment of  the  contract  of  sale,  it  is  not  competent  for  this 
Court  to  substitute  any  other  in  its  ))lace. 

2.  Because  the  complainant,  having  a  complete  remedy 
at  law  under  the  agreement  made,  is  not  entitled  to  relief  in 
tfiis  Court. 

3.  Because  the  evidence  having  shown  misrepresentation 
and  fraud  on  the  part  of  the  complainant,  the  bill  ought  to 
have  been  dismissed. 

Ruthdge^  for  appellant. 

Flagg,  contra. 

The  opinion  of  the  Court  was  delivered  by 

Johnston,  Cii.  The  Chancellor  has  decided  that  there  was 
no  fraudulent  conceahnent  or  misrepresentation  on  the  part 
of  the  plaintiffs,  and  this  Court  has  no  reason  to  dissent  from 
his  conclusion. 

It  is  objected  that  the  Court  was  ousted  of  its  jurisdiction 
to  decree  a  performance  of  the  contract,  by  the  parties  having 
stipulated  damages  for  its  non-performance. 


APPEALS  IN  EaUITY.  t>:n 

Cli:irlest<iii,  January,  18(')0. 

The  Court  is  of  opinion  that  this  point  is  not  unfreqnently 
misapprehended.  Whether  tlie  snni  fixed  in  case  of  non- 
performance is  a  j)enahy  or  sti|Milated  damages,  depends  on 
the  nature  of  the  contract,  (consith^red  in  the  light  of  all  its 
circumstances,)  and  the  attitude  of  the  parties  under  it.  If, 
upon  being  viewer!  in  this  way,  a  conviction  results  that  the 
sum  was  fixed  as  a  penalty  to  compel  performance,  tlie  Court 
should  execute  the  agreement.  If,  on  the  other  hand,  it  is 
persuaded  that  it  was  stipulated  as  a  substitute  for  perform- 
ance, the  duty  of  the  Court  is  to  regard  it  as  a  case  in  which 
the  parties  have  agreed  upon  damages  to  be  recovered  in 
]>lace  of  the  performance:  and  unless  there  is  something 
special  in  the  case  to  call  for  a  different  conclusion,  it  should 
leave  the  parti^^s  to  the  legal  remedy  thus  ])rovided  by  them- 
selves. 

This  abstinence  is  proper  for  the  most  part  in  cases,  how- 
ever, wliere  there  has  been  no  part  j)erformance  on  either 
side;  when  nothing  has  been  done  to  change  the  original 
posture  of  affairs,  and  where  the  damages  fi.xed  may  be  fairly 
assumed  as  the  fair  value  of  the  disap[)ointment  experienced. 

How  should  we  regard  the  damages  expressed  in  this  con- 
tract, in  the  face  of  the  fact  that  Kopmann  has  been  let 
into  possession  of  Moorer's  property,  and  still  retains  his 
own?  Is  he  to  be  allowed  to  hold  all  the  advantages  of  this 
fraud  ? 

Would  it  be  less  than  a  wilful  dereliction  of  duty,  on  the 
part  of  the  Court,  to  hold  its  hand,  unless  it  were  satisfied 
that  ^1,000.  the  sum  stipnlatinj  in  this  case,  was  the  full 
value  of  the  property  acquired  by  Kopmann  from  Moorer, 
irrespective  of  wliat  he,  Kopmann,  was  to  give  in  exchange  for 
it?     This  was  manifestly  not  so. 

It  is  ordered  that  the  decree  be  affirmed,  and  the  appeal 
dismissed. 

O'Neall,  C,  J.,  AND  Wakdlaw,  J.,  concurred. 

Appeal  dbnissed. 


2:i2  APPEALS  IN  EaUlTY. 


Anderson  vs.  Aiken. 


John  W.  Anderson  vs.  Hugh  K.  Aiken. 
Mortgage — Fraud — Jurisdiction — Parties. 

A  purchaser  in  Florida  of  a  mortgaged  slave,  removed  the  slave  to  this  State, 
and  here  sold  him  to  one  who  carried  him  beyond  the  jnrisdiclion  : — Ihld,  that 
the  purchaser,  who  bought  with  notice  of  the  mortgage,  was  liable  in  equity  to 
the  morigagee  :  and  that  the  mortgagor  v/as  a  necessary  party  to  the  bill. 

BEFORE  DUNKIN,  CIL,  AT  CHARLESTON,  JUNE,  1S59. 

This  case  was  heard  upon  the  report  of  the  master,  which 
is  as  follows : 

I  beg  leave  respectfully  to  report  that  I  have  been  attended 
by  the  solicitors,  and  have  taken  testimony  in  this  case  as 
follows  : 

On  6th  March,  1856,  W.  E.  Chambers,  Jr.,  then  a  resident 
of  Florida,  being  indebted  to  the  plaintiti'  in  the  sum  of 
$2,000  on  note,  executed  a  mortgage  of  certain  lands  and 
slaves  in  Florida,  to  secure  the  payment  of  this  debt  and 
future  advances — the  plaintiff  being  his  factor  and  doing 
business  in  Savannah.  That  at  the  maturity  of  the  note  in 
January,  1S57,  the  debt  had  reached  about  $4,000,  and  is  sfill 
due  at  the  date  of  this  report.  This  mortgage  was  duly 
recorded  in  the  proper  oflice,  and  within  the  proper  time,  as 
required  by  the  laws  of  Florida. 

Among  the  negroes  mortgaged  was  one  described  in  that 
instrument  as  "a  mulatto  man  named  Thomas,  aged  about 
twenty-two  years."  It  is  in  evidence  that  Chambers  owned 
another  negro  man  named  Tom,  described  as  "  of  a  black 
complexion  ;"  his  age  is  not  given.  That  besides  Thomas, 
to  be  hereinafter  more  particularly  referred  to,  two  of  the 
mortgaged  negroes  have  been  sold  by  W.  E.  Chambers,  Jr., 
viz:  one  to  W.  E.   Chambers,  Sr.,  with   the   consent  of   the 


APPEALS  IN  EaUlTY.  2:i:3 

Charleslon,  January,  1860. 

mortgagee,  but  the  mortgagor  received  the  purchase  money, 
and  one  to  some  person  unknown.  The  value  of  these 
negroes  and  their  price  have  not  been  proved  before  me. 

The  phiintifl'  is  not  shown  to  have  consented  to  any  other 
sale  but  tliat  to  W,  E.  Chambers,  Sr. 

It  further  appears  that  about  the  early  part  of  the  year 
1857,  W.  E.  Chambers,  Jr.,  became  indebted  to  H.  K.  Aiken 
&:  Co.,  (of  which  firm  defendant  is  a  partner,)  in  the  sum  of 
^2,300.  That  in  the  spring  of  1857,  defendant  visited  Cham- 
bers on  his  plantation  in  Florida,  to  procure  a  settlement  of 
his  debt,  and  then  or  at  some  other  time,  as  he  states  in  his 
answer,  he  saw  the  mortgaire  on  record,  but  he  alleges  that 
Chamliers  told  him  tlie  mortgaged  negro  was  not  this  Tho- 
mas, but  another  of  tiie  same  name.  That  he  procured  from 
Chambers  a  bill  of  sale  of  the  negro,  and  brought  him  lo 
Charleston,  and  there  is  no  proof  that  lie  used  any  disguise 
or  concealment  in  doing  so.  Tiiat  soon  after  his  arrival  he 
offered  hiin  for  sale  to  a  witness,  who  describes  him  as  named 
Thomas,  "a  likely  brown  man,  about  twenty-two  y^ars  of 
age."  That  Aiken  represented  to  this  witness,  that  he  got 
liim  from  a  man  in  Florida,  named  Chambers;  that  Cham- 
bers was  indebted  to  parlies  in  Savannah,  and  had  mortgaged 
some  of  his  negroes  to  secure  the  payment,  and  that  he 
(Aiken)  was  not  certain  whether  this  was  one  of  the  negroes 
or  not,  and  as  there  was  some  doubt  about  it,  he  would  not 
guarantee  the  bill  of  sale.  That  Chambers  had  inforu)ed  him 
there  was  no  mortgage  on  this  negro  Tom;  that  there  was 
another  Touj,  who  was  in  tin?  mortgage.  The  witness  took 
legal  advice,  and  declined  tlie  sale.  He  says  Thomas  was 
ruptured,  but  as  he  was  recommended  by  Aiken  as  a  good 
coachman,  he  would  have  given  ^700  for  him,  if  the  title 
had  been  good.  Immediately  thereafter,  viz:  9th  June,  1857, 
Aiken  sold  the  negro  by  public  auction,  in  Charleston,  for 
^800,  to  a  negro  trader — the  purchaser  receiving  Aiken's  bill 
of  sale. 


234  APPEALS  IN  EaUITY. 

Anderson  vs.  Aiken. 

I  report  as  my  opinion  that  Thomas  was  worth  $800  when 
sold,  and  his  hire  is  worth,  annually,  f  120. 

The  proof  is  tiiat  the  jilaintift"  cannot  realize  his  debt  from 
Chambers  witliout  the  mortgaged  property.  It  has  not  been 
shown  to  my  satisfaction  whether,  after  the  sale  of  the  negroes 
referred  to,  the  balance  of  the  mortgaged  property  would  or 
would  not  be  sufficient  to  pay  the  plaintiff's  debt. 

I  further  find  that  H.  K.  Aiken  &  Co,  have  obtained  judg- 
ment at  January  Term,  1858,  in  Charleston,  against  W.  E. 
Chambers,  Jr.,  for  ^1,494  10,  being  the  balance  due  tliem 
after  crediting  the  amount  of  the  sale  of  Thomas,  In  this 
suit  Chambers  was  lield  in  bail,  and  W.  E,  Ellison,  S,  C,  E. 
Chambers  and  John  Adger,  became  his  sureties,  and  the  bail 
has  been  lixed  by  the  return  of  71011  est  on  the  ca.  sa. 

DuNKiN,  Ch,  The  facts  of  this  case  are  presented  in  the 
report  of  the  evidence. 

If  the  charge  of  the  bill  had  been  established,  that  the 
defendant  fraudulently  assisted  Chambers  in  the  clandestine 
removal  of  his  property,  with  a  view  to  defeat  his  creditors, 
the  suit  might  be  maintained  upon  the  authority  of  Pickett 
vs.  Pickett,  2  Hill  Ch.,  470.  But  the  denial  of  any  fraudu- 
lent design,  or  even  clandestine  removal,  is  corroborated  and 
sustained  rather  than  impugned  by  the  testimony. 

So,  too,  assuming  the  identity  of  the  slave  Tom,  the  plain- 
tiff holding  a  mortgage  from  Chambers,  of  both  real  and 
personal  estate,  might  maintain  his  bill  in  this  Court  for 
account  and  foreclosure;  but  in  such  proceedings  the  debtor 
and  mortgagor.  Chambers,  would  of  course  be  a  necessary 
party.     Nor  is  this  the  scope  of  the  bill. 

It  has  been  held  that,  after  condition  broken,  the  mortgagee 
of  a  chattel  is  regarded  as  the  owner.  Wo//  vs.  O^FarreH,  I 
Tread.  Const.  Rep.,  151. 

Whether  he  should  be  considered  owner  in  the  sense  of 
enabling  him  to  maintain  a  bill  for  specific  delivery  against 
the  person  in  possession  of  the  slave,  upon  the   principle  of 


APPEALS  IN  EaUlTY.  235 

Cliarleston,  January,  ISOO. 

YoiDig  VS.  Burton,  McM.  Eq.,  25n,  it  is  not  necessary  liere  to 
inquire.  The  bill  is  filed  on  the  assumption  lliat  the  plain- 
tiff is  "the  actual  owner  of  the  slave,"  sets  forth  the  sale  by 
the  defendant  before;  any  deinaud  made,  and  the  only  specific 
remedy  which  the  plaintdf  seeks  is,  that  "the  defendant  may 
be  decreed  to  pay  over  to  the  plaintiff  the  full  value  of  the 
slave  Thomas,  wi(h  interest,  &c."  If  the  plaintiff  is  entitled 
to  this,  it  may  be  recovered  by  an  action  of  trover,  according 
to  the  case  ah'eady  cited,  TVolfva.  O^ Farre/l ;  or,  if  an  action 
of  trespass  would  be  more  appropriati%  the  ordinary  tribunal 
is  open  fi»r  tliat  [purpose.  See  Montgomery  vs.  Kerr,  1  Hill, 
291. 

It  is  ordered  and  decreed,  that  the  bill  be  dismissed. 

The  plaintiff  ajipealed  on  the  grounds: 

1.  That  the  def(;ndant  is  shown  to  have  acted  fraudulently 
in  assisting  Chambers  to  remove  his  property,  with  the  inten- 
tion of  defeating  the  plaintiff's  claim. 

2.  'IMiat  whetlier  Aiken  and  Chambers  did  or  did  not 
intend  Xi  defraud  Anderson,  "by  their  conduct,  their  success, 
and  a  fraud  upon  an  innocent  creditor,  have  become  insepar- 
able," and  tliis  entitles  the  jilaintiff  to  relief  in  this  Court. 

3.  That  the  bill  is  filed  inter  alia  to  compel  defendant,  a 
creditor,  with  two  adeijuaie  securities,  to  surrender  one  to  the 
plaintiff,  who  had  but  one:  and  this  is  a  familiar  grt)uud  of 
equity  jurisdieti<ui. 

4.  Because  a  mortgage,  executed  in  another  State,  does  not 
confer  on  the  mortgagee  the  power  of  seizure,  or  right  to  sue 
at  law  here,  even  after  condition  broken  ;  and  if  it  ever  were 
so,  the  Act  of  l.S43has  rendered  recording  necessary  to  such 
power.  The  plaintifl'  submits,  therefore,  that  he  had  no 
adequate  remedy  at  law,  his  mortgage  not  having  been  so 
recorded. 

Martin,  for  appellant. 


23.'3  APPEALS  IX  EaULTY. 

Anderson  vs.  Aiken. 

1.  The  circumstances  of  the  removal  and  sale  of  tlie  slave, 
and  appropriation  of  the  proceeds  by  Aiken,  leave  no  other 
possible  interpretation  but  an  intention  to  defeat  Anderson's 
mortgage.  This  is  fraud,  and  needs  not  to  have  been  done 
clandestinely,  as  the  decree  assumes.  Pickett  vs.  Pickett,  2 
Hill  Ch.,  471;  Pettus  vs.  Smith,  4  Rich.  Eq.,  19S  ;  Farr 
vs.  Si/ris,  Rich.  Eq.  Ca.,  122;  McMeekin  vs.  Edmunds,  1 
Hill  Ch.,  2SS  ;   Story  Eq.,  sec.  333,  349,  395,  396,  397,  400. 

2.  Anderson  has  an  equity  to  compel  Aiken,  who  had  a 
general  lien  on  Chamber's  property,  to  release  all  claim  upon 
the  slave  upon  whom  Anderson  had  only  a  specific  lien. 
Bank  of  Hamburg  vs.  Howard  <§•  Garmany,  1  Stro.  Eq.,  177. 

3.  If  Aiken  has  not  acted  fraudulently,  he  is  a  purchaser 
of  the  slave  subsequent  to  Anderson's  mortgage,  and  without 
notice.  As  to  him,  the  mortgage  would,  therefore,  be  void. 
11  Stat.,  256.  Neither  could  he  be  sued  in  trover  nor  trespass 
as  the  decree  assumes,  unless  it  was  first  shown,  that  the 
mortgage  conferred  such  right  by  the  laws  of  Florida.  For 
although  remedies  belong  to  the  lex  fori.,  yet  the  merits  and 
rights  of  the  parties  are  controlled  by  lex  loci  contractus. 
The  right,  according  to  the  latter,  may  be  in  rem,  not 
in  personam.  If  these  positions  are  correct,  it  follows,  that 
Anderson  could  only  pursue  his  remedies  in  this  Court. 
Story's  Conflict  of  Laws,  sec.  558  and  568;  Napier  and 
Gidier,  Speer  Eq.',  215;   Cameron  and  TVurtz,  4  McC,  278. 

Simonton,  contra. 

The  opinion  of  the  Court  was  delivered  by 

O'Neall,  C.  J.  In  this  case,  it  seems,  that  the  defendant 
visited  the  mortgagor  on  his  plantation,  in  Florida,  and  saw 
the  mortgage,  under  which  the  complainant  claims,  on  re- 
cord. This,  beyond  all  doubt,  was  sufficient  notice  to  him. 
It  is  true,  his  debtor  told  him  that  the  mulatto  man  Thomas, 
then  before  him,  and  described  in  the  mortgage  as  "a  mulatto 
man  named  Thomas,  about  twenty-two  years  of  age,"  was 


APPEALS  IN  EaUITY.  2:^7 

Charleston,  January,  ISGO. 

not  the  man  in  the  mortgage,  but  that  he  was  another  nian  of 
the  same  name.  Whether  there  ever  was  another  mnlatto 
man  named  Thomas,  who  belonged  to  Chambers,  does  not 
appear.     He  had  a  bhick  man  of  that  name. 

The  defendant,  with  tho  knowledge  which  the  mortgage 
gave  him,  pnrchased  the  mulatto  man,  named  Thomas,  in 
satisfaction  of  his  debt,  removed  him  from  Florida,  and  in 
Charleston  sold  him  at  anction,  without  a  warranty,  to  a 
negro  trader,  for  ^SOO.  The  question  is,  who  in  equity  must 
bear  the  loss  ?  Beyond  all  doubt,  the  complainant's  legal  title 
is  perfect;  but  he  cannot  avail  himself  of  it,  inasmuch  as  the 
defendant,  knowing  or  believing  that  the  slave  would  be 
recovered  from  him,  if  he  remained  in  South  Carolina,  sold 
him  to  one  who  was  likely  to  remove  him,  and  who  did 
remove  him  to  parts  unknown.  I  am  clear  the  defendant  is 
answerable.  The  cases  of  Pickett  vs.  Pickett^  2  Ilill  Ch., 
471  ;  Pettus  vs.  Smith,  4  Rich.  Eq.,  196,  are  full  and  clear 
authorities  to  that  point.  lUit  it  may  be,  as  has  been  sug- 
gested, that  the  other  mortgaged  slaves  which  have  been  sold, 
and  the  other  property,  real  and  personal,  mentioned  in  the 
mortgage,  may  have  been,  or  ought  to  have  beeti  applied  to 
the  satisfaction  of  the  mortgage,  and  that  llius  the  mortgagee 
has  a  sulficieut  remedy  without  resorting  to  the  slave  sold  by 
Aiken.  To  reach  what  may  bt^  the  true  state  of  facts  in  these 
respects,  and  also  to  ascertain  the  amount  of  the  complain- 
ant's debt,  it  is  necessary  that  the  mortgagor,  W.  E.  Chambers, 
should  be  a  party. 

It  is  therefore  ordered  and  decreed,  that  the  circuit  decree 
be  set  aside,  and  the  case  remanded  to  the  circuit,  with  leave 
to  the  complainant  to  so  amend  his  bill  as  to  make  W.  E. 
Chambers,  Jr.,  a  party,  and  to  set  out  his  mortgage  more  fully, 
and  the  debt  secured  thereby,  and  the  property  tlu^rciu  mort- 
gaged, and  what  has  become  of  the  same;  and  any  other 
matter  which  he  may  be  advised  is  material  to  his  cause. 

Johnston  and  Wardi.aw,  J.  J.,  concurred. 
Decree  set  aside. 


238  APPEALS  IN  EQUITY. 


Ford  vs.  Porter. 


F.  A.  Ford,  Deputy  Escheator  ?;5'.  W.  D.  Porter,  Executor. 
Wills  and  Testcnnents — Emancipation — Slaves. 

A  bequest  of  slaves  to  four  lep:atees,  "and  the  survivors  and  survivor  of  them," 
"with  a  request  that  they  will  extend  to  the  said  slaves  all  the  indulgence,  privi- 
leg^e  and  eonsideration  which  the  law  will  allow  them,  in  the  character  of  own- 
ers, to  extend  to  thein,"  is  not  void  under  the  third  section  of  the  Act  of  1841. 

A  bequest  of  money  to  the  same  four  legatees  "and  the  survivors  and  survivor 
of  theni,"  "  to  enable  thera  to  support  the  said  slaves,  when  they,  irom  age  or 
sickness,  may  become  chargeable  upon  thera,"  is  not  void  under  the  fourth 
section  of  the  Act  of  1^41. 

BEFORK  DUNKIN,  CIL,  AT   CHARLESTON,  JUNE,  1859. 

This  was  a  bill  by  the  Deputy  Escheator,  for  St.  Phillip's 
and  St.  Michael's,  claiaiiiig  that  certain  bequests  in  the  will 
of  Elizabeth  Williman  were  void  under  the  Act  of  1S41,  and 
that  as  she  died  without  next  of  kin,  they  had  escheated  to 
the  State.     The  bill  stated  : 

That  on  the  day  of  ,  1855,  Elizabeth  Williman, 

a  widow,  departed  this  life,  seized  and  possessed  of  a  consid- 
erable real  and  personal  estate,  consisting  inte?^  alia,  of  cer- 
tain slaves,  named  George,  Sam,  Francis,  Edwin,  Sarah  and 
Rose. 

That  on  the  nineteenth  day  of  May,  1S54,  the  said  Eliza- 
beth Williman  duly  executed,  in  the  presence  of  three  wit- 
nesses, the  following  paper,  purporting  to  be  her  last  will  and 
testament,  namely : 

"  The  State  of  South  Carolina. 

In  the  name  of  God. — Amen.  I,  Elizabeth  Williman, 
widow,  of  the  City  of  Charleston,  in  the  State  aforesaid,  being 
weak  in  body,  but  of  sound  and  disposing  mind,  and  being 
mindful  of  the  uncertainty  of  human  life,  do  make  and 
declare  the  following  to  be  my  last  will  and  testament: 


APPEALS  IN  EaUITY.  239 

Charleston,  January,  1S(30. 

I  commit  my  spirit,  in  faith  and  hope,  to  God  who  gave  it. 
As  rrgards  my  worldly  estate,  I  give  and  hequeatli  to  my 
good  friends,  Dr.  John  Bollinger,  Clem(Mit  II.  Stevens,  Thomas 
Lehre,  and  Charles  Postell  Dawson,  and  the  survivors  and 
snrvivor  of  them,  my  faithful  negro  slaves,  George,  Sam, 
Francis,  Edwin,  Sarah  and  Rose,  with  a  7'cf/ue.s/  that  they 
will  extend  to  the  said  slaves  all  the  indulgence,  privilege 
and  consideration,  which  the  law  will  allow  them,  in  the 
character  of  owners,  to  extend  to  them.  In  consideration  of 
his  personal  kin(lness  to  me,  and  in  lien  and  satisfaction  of 
his  claims  for  medical  services  and  attentions  rendered  to  me, 
I  give  and  devise  to  my  kind  friend,  Dr.  John  Bellinger,  his 
heirs  and  assigns,  my  lot  of  land,  with  the  grocery  store 
ther(!on,  situate  at  the  Norlh-East  corner  of  Calhoun  and 
Smith  streets,  hounding  to  the  North  on  a  lot  lately  sold  by 
me  to  Mr.  Stevens,  and  to  the  East  on  a  lot  belonging  to  me, 
and  now  in  possession  of  Mr.  Chisolm. 

I  authorize  and  direct  my  executor,  hereinal'ter  named,  to 
sell,  as  soon  after  my  death  as  he  conveniently  can,  at  public 
or  private  sale,  in  such  manner  and  upon  such  terms  as  he 
may  think  for  the  best  advantage,  my  other  lots  of  land,  and 
all  my  estate,  real  and  personal,  except  the  n^'groes,  and  the 
lot  of  land  hereinbefore  devised;  and  to  apply  the  proceeds 
of  sale  to  the  payment  of  my  debts,  and  the  legacies  her(!in- 
afler  mentioned. 

I  give  to  my  kind  friends,  Dr.  Jdlin  Bellinger,  ClemiMit  II. 
Stevens,  Thomas  Lehre,  and  Charles  Postell  Dawson,  and  the 
survivors  and  survivor  of  them,  the  suiti  of  two  thousand 
dollars,  to  enai)le  them  to  support  the  said  slaves,  George, 
Sam,  Francis,  Edv/in,  Sarah  and  Rose,  when  they,  from  age 
or  sickness,  may  become  chargeal)le  upon  them. 

I  give  to  my  friend,  Mrs.  Martha  Osborne  Matthews,  the 
sum  of  one  thousand  dollars. 

I  give  to  my  friend,  Elizabeth  Dawson,  the  daughter  of 
Charles  P.  Dawson,  the  sum  of  one  thousand  dollars. 


240  APPEALS  IN  EaUlTY. 

Ford  V.I.  Porler. 

I  give  to  my  friend,  William  D.  Porter,  the  sum  of  one 
thousand  dollars. 

After  the  payment  of  the  foregoing  legacies,  should  tiiere 
be  any  residue,  I  give  to  Clement  Bee  Stevens,  the  little  son 
of  my  friend,  Clement  H.  Stevens,  the  sum  of  one  thousand 
dollars. 

These  legacies  I  direct  my  executor  to  pay  out  of  the  pro- 
ceeds of  the  sale  of  my  property,  as  iiereinbefore  directed, 
and  all  the  rest  and  residue  of  such  proceeds,  (if  any  shall 
remain  thereafter,)  I  give  and  bequeath  to  my  friends,  Dr, 
John  Bellinger,  Clement  H.  Stevens,  Thomas  Lehre,  and 
Charles  P.  Dawson,  and  the  survivors  and  survivor  of  them, 
in  the  same  manner,  and  for  tlie  same  purpose,  as  herein- 
before expressed,  in  relation  to  the  legacy  to  them  of  two 
thousand  dollars. 

I  appoint  my  friend,  William  D.  Porter,  executor  of  this, 
my  last  Will  and  Testament,  authorizing  him  to  retain  the 
usual  commission  as  executor. 

And  1  do  hereby  revoke  all  other  wills  heretofore  made  by 
me.  In  witness  whereof,  I,  the  said  Elizabeth  Williman, 
have  hereunto  set  my  hand  and  seal,  this  nineteenth  day  of 
May,  in  the  year  of  our  Lord,  one  thousand  eight  hundred 
and  fifty- four." 

That  on  the  twentieth  day  of  July,  1855,  the  testatrix,  in 
due  form,  executed  the  following  codicil  to  the  said  will: 

"  I,  Elizabeth  Williman,  do  make  this  codicil  to  my  afore- 
said Will,  hereby  ratifying  and  confirming  the  same,  except 
so  far  as  changed  cfr  revoked  by  this  codicil.  I  do  liereby 
revoke  the  be(|uest  made  in  said  Will,  of  my  slaves  Rose  and 
Sarah,  and  also  the  provisions  therein  made,  as  far  as  relates 
to  them  ;  and  I  direct  that  the  said  slaves,  Rose  and  Sarah, 
or  the  proceeds  of  their  sale,  become  part  of  my  estate;  and 
1  do  hereby  further  direct,  that  the  legacy  of  two  thousand 
dollars  made  in  said  Will,  sliall  enure  for  the  support  of  my 
other  four  faithful  slaves,  George,  Sam,  Francis,  and  Edwin, 
in  the  manner  stated  in  said  Will." 


APPEALS  IN  EaUITY.  241 

Charleston,  January,  1860. 

That,  upon  this  paper,  William  D,  Porter,  the  executor 
therein  named,  qualified  on  the  thirty-first  day  of  August, 
1855,  and  he  has  rednced  the  personalty  into  his  possession, 
and  has  proceeded  to  distribute  the  estate,  and  execute  the 
trusts  of  the  will. 

That  the  said  Elizabeth  Williman  died  without  leaving  any 
person  or  persons  entitled  to  claim — according  to  the  stalnte  of 
distributions — and  without  having  made  an  effectual  dispo- 
sition of  her  slaves,  George,  Sam,  Francis,  and  Edwin,  and 
of  the  sum  of  $2,000,  and  the  residuum  of  her  estate  to  Dr. 
John  Bellinger,  Clement  H.  Stevens,  Thomas  Lehre,  and 
riiarles  Postell  Dawson  ;  that  the  bequest  of  the  said  slaves 
was  intended  for  their  virtual  emancipation,  and  the  sum  of 
^2,000  and  residuum  were  bequeathed  to  the  legatees  afore- 
said, for  the  support  of  the  slaves  in  a  state  of  freedom,  in 
direct  violation  of  the  Acts  of  Assembly  of  this  State,  pro- 
hibiting emancipation. 

That  the  said  bequests  being  therefore  void,  the  slaves  and 
money  have  become  liable  to  escheat,  and  to  be  vested  in  the 
City  Council  of  Charleston,  for  the  benefit  of  the  Orf)han 
House  in  the  said  city.  That  the  said  John  Bellinger, 
Clement  H.  Stevens,  Thomas  Lehre,  and  Charles  Postell 
Dawson,  accepted  the  trust  conferred  upon  them,  and  have 
proceeded  to  carry  into  effect  the  wishes  of  the  testator — the 
said  Charles  P.  Dawson  having  since  departed  lliis  life,  and 
the  legal  estate  thereby  vested  in  the  survivors.  That  suf- 
ficient time  has  elapsed  for  the  executor  to  pay  the  legacies 
which  are  not  objectionable,  and  the  testatrix  left  few  debts 
of  inconsiderable  amount,  which  have  been  paid  ;  and  there 
has  long  been  in  the  executor's  hands  a  sufficient  amount  of 
assets  to  meet  the  debts  and  legacies. 

The    joint    and    several    answer   of    John    Bellinger   and 
Clement  H.  Stevens,  stated  that  they  admit  that  Mrs.  Eliza- 
beth Williman  departed  this  life  in  the  month  of  August,  in 
the  year   1855,  leaving  in  full  force  and  effect  her  will  and 
17 


242  APPEALS  IN  EaUITY. 

Ford  vs.  Porter. 

codicil,  a  correct  copy  whereof  is,  as  they  believe,  set  forth 
in  the  bill.  That  William  D.  Porter  qualified  on  said  will, 
and  undertook  the  execution  thereof.  And  these  defendants 
severally  say,  that  the  said  slaves  named  in  the  will,  to  wit: 
George,  Edwin,  Samuel  and  Francis,  have  not  been  delivered 
to  them,  but  that  they  are  still  in  the  possession  of  the  said 
executor,  who  returns  them  for  taxation  as  part  of  the  estate, 
and  pays  the  taxes,  and  collects  wages  from  them  ;  and  that 
no  part  of  the  said  legacy  of  $2,000  has  been  paid  to  either 
of  them  ;  and  they  are  informed  and  believe,  that  the  estate 
has  been  kept  together  by  the  executor  from  a  desire  on  the 
part  of  all  interested  in  the  will,  that  a  favorable  sale  of  the 
real  estate,  which  is  the  bulk  of  the  property,  apart  from  the 
negroes  specifically  bequeathed,  might  be  made,  so  that  all 
the  debts  and  legacies  might  be  paid. 

And  this  defendant,  Clement  H.  Stevens,  answering  separ- 
ately, for  himself,  says,  that  there  was  not,  and  is  not  any 
trust  or  confidence,  secret  or  expressed,  accompanying  said 
bequest,  to  hold  the  said  slaves,  George,  Samuel,  Francis  and 
Edwin,  in  a  condition  of  virtual  freedom  or  nominal  slavery. 
That  he  was  well  acquainted  with  Mrs.  Williman,  was  a 
neighbor  of  hers,  and  was  in  the  habit  of  attending  to  her 
matters  of  business  when  she  was  old  and  infirm. 

That  he  knows  that  Mrs.  Williman  did,  at  one  time,  enter- 
tain the  desire  to  leave  the  said  negroes  free,  but  that  she 
informed  him  that  she  had  been  advised  professionally  by 
Mr.  W.  D.  Porter,  that  she  could  not  do  so,  and  that  the  best 
she  could  do,  under  the  laws  of  the  State,  for  the  said  slaves, 
was  to  leave  them  to  masters  in  whose  kindness  she  had  con- 
fidence, bespeaking  for  them  the  indulgence  and  considera- 
tion of  said  masters.  And  this  respondent  believes,  from  his 
conversations  with  her,  that  she  perfectly  understood  that  she 
could  not  legally  leave  the  said  slaves  here  in  a  state  either 
of  actual  or  virtual  freedom.  That  she  informed  this  respon- 
dent of  her  intentions  to  make  said  bequest  to  him,  but  he 
denies  that  she  communicated  to  him,  or  required  from  him 


APPEALS  IN  EaUITY.  243 

Charleston,  January,  1860. 

any  trust  or  confidence,  secret  or  expressed,  that  the  said 
slaves,  or  any  of  them,  shonld  be  held  in  nominal  servitude 
only.  Nor  was  there  any  trust  or  confidence  attached  to  the 
bequest  of  the  $2,000,  or  of  the  residue  of  the  estate,  save 
and  except  such  as  is  declared  on  the  face  of  the  will.  And 
this  respondent  claims  the  benefit  of  the  bequest  of  said  slaves, 
intending  to  hold  them  as  master  and  owner  in  subordination 
to  the  laws  of  the  State.  And  he  also  claims  the  benefit  of 
the  said  pecuniary  and  residuary  bequests,  to  be  used  in  dis- 
charge of  the  duty  devolved  upon  him  as  master  by  law, 
when  old  age  or  infirmity  shall  overtake  the  said  slaves,  or 
any  of  them. 

And  the  said  John  Bellinger,  answering  separately,  for  him- 
self, says,  that  he  was  for  about  years  the  attending 
physician  of  Mrs.  Williman.  That  he  knows  that  she  enter- 
tained the  kindest  feelings  towards  the  slaves  above  named, 
who  were  well  worthy  of  it.  But  this  respondent  denies  that 
she  ever  communicated  to  him  any  intention'  on  her  part  to 
emancipate  them,  actually  or  virtually.  And  he  further 
denies  that  there  was  or  is  any  confidence  or  trust,  secret  or 
expressed,  between  the  testatrix  and  himself,  to  hold  said 
slaves  in  a  condition  of  nominal  slavery,  or  virtual  freedom. 
That  he  claims  to  hold  said  slaves  when  they  shall  be  deliv- 
ered to  him  by  the  executor,  as  master  and  owner  in  his  own 
right,  and  in  full  view  of  his  obligations  to  the  laws  of  the 
State.  And  this  respondent  also  claims  the  benefit  of  the 
pecuniary  and  residuary  bequests,  to  be  used  in  aid  of  the 
obligation  which  the  law  imposes  upon  him  as  owner,  to 
care  for  them,  and  support  them  in  time  of  sickness,  infirmity 
and  old  age.  And  he  utterly  denies  that  there  is  any  trust  or 
confidence,  secret  or  expressed,  accompanying  said  bequests, 
other  than  what  may  appear  on  the  face  of  the  will. 

The  answer  of  W.  D.  Porter,  executor  of  Elizabeth  Willi- 
man, stated, 

That  it  is  true  that  Mrs.  Elizabeth  Williman  departed  this 


244  APPEALS  IN  EaiJlTY. 

Ford  vs.  Porter. 

life  on  or  about  the  day  of  August,  in  the  year  eighteen 

hundred  and  fifty-five,  leaving  in  full  force  and  effect  her  last 
will  and  testament,  a  correct  copy  whereof,  and  of  a  codicil 
attached  thereto,  is  set  forth  in  the  bill;  and  that  this  defen- 
dant duly  qualified  thereon  as  executor. 

That  the  said  testatrix  left  considerable  real  and  personal 
estate,  and  that  so  far  as  respondent  knows,  she  did  not  leave 
any  person  or  persons  entitled  to  claim  under  the  statutes  of 
distributions  and  descents. 

That  he  has  not  yet  distributed  the  estate,  nor  delivered 
the  said  slaves,  nor  paid  the  pecuniary  legacies.  That  shortly 
after  the  death  of  Mrs.  Williman,real  property  fell  very  much 
in  value;  and  that  as  all  parties  interested  in  the  will  seemed 
desirous  that  all  (he  debts  and  legacies  should  be  paid,  the 
estate  was  retained  in  the  hands  of  the  executor,  and  rents 
and  wages  collected,  with  the  view  to  the  accomplishment  of 
this  end.  That  the  debts  of  the  estate  proved  to  be  much 
more  numerous  than  was  a^iticipated,  and  have  not  yet  been 
all  paid  off. 

And  this  respondent,  further  answering,  says,  that  he 
admits  that  Mrs.  Williman  did,  at  one  time,  express  a  desire 
that. her  slaves  should  be  emancipated.  But  that  she  was 
professionally  advised  that  this  could  not  be  done  under  the 
laws  of  the  State;  that  she  might  select  their  owners,  and 
express  any  request  for  such  privileges  or  indulgence  towards 
them  as  she  pleased,  and  as  masters  might  properly  extend. 
But  that  they  must  become  the  absolute  property  of  such 
legatees  or  owners,  without  any  trust  for  emancipation,  ex- 
press or  implied,  open  or  secret;  and  that. they  would  neces- 
sarily be  subject  to  the  disposition,  and  liable  for  the  debts  of 
such  parties.  And  this  defendant  believes  that  before,  and 
at  the  time  of,  and  after  making  her  will,  the  testatrix  acqui- 
esced in  these  views,  and  made  her  testamentary  dispositions 
in  accordance  therewith. 

That  the  testatrix  was  further  advised  that  it  was  legal 
and  competent  for  her  to  make  the  bequests  mentioned  in  her 


APPEALS  IN  EaUITY.  245 

Charleston,  January,  1800. 

will  to  tlie  intended  owners  of  the  slaves,  to  be  applied  to  the 
maintenance  of  said  slav^es,  when  they,  from  age  or  sick- 
ness, miglit  become  chargeable  upon  them,  for  the  purpose  of 
relieving  the  said  owners,  to  some  extent,  of  the  burden 
which  the  laws  would  cast  upon  them. 

And  this  defendant  submits  to  this  Honorable  Court,  that 
the  aforesaid  bequests  are  good  and  valid  in  law;  but  that  if 
the  same,  or  either  of  them,  be  void,  then  that  the  debts  and 
other  legacies  under  the  will  must  be  paid  and  satisfied  before 
there  can  be  any  claim  on  the  part  of  the  escheator,  and  that 
said  claim  can  only  be  for  any  residue  after  payment  of  such 
debts  and  legacies. 

And  this  respondent,  further  answering,  says,  that  Charles 
P.  Dawson  and  Thon)as  Lehre  are  dead,  and  that  the  said 
bequests  survive  to  Dr.  John  Bellinger  and  Clement  H. 
Stevens  ;  and  he  is  now  in  treaty  for  the  sale  of  the  real 
estate;  and  until  such  sale  is  made,  he  cannot  say  whether 
or  not  the  assets  of  the  estate  are  sufficient  to  pay  the  debts 
and  legacies,  and  leave  any  residue. 

Clement  H.  Stephens — Examined  by  consent:  "Witness 
thinks  the  testatrix,  Mrs.  Willinian,  was  a  native  of  the 
State.  The  men  included  in  the  original  bequest  are  able 
bodied;  one  of  the  women  was  young,  the  other  was  elderly, 
and  was  said  to  be  sickly;  there  were  four  men,  all  about 
prime." 

In  reply  to  an  inquiry,  whether  he  regarded  the  slaves  as 
his  property,  witness  said:  "he  did  not  see  how  he  could, 
legally,  leave  out  this  property  in  a  schedule  to  be  made; 
would  regard  it  as  much  his  as  the  rest  of  his  property, 
except  that  there  is  a  right  of  survivorship;  would  appropri- 
ate the  wages  to  his  own  use;  would  not  generally  regard 
sncli  a  bequest  as  a  burthen;  would  have  taken  the  bequest 
without  the  ?2,000;  but  would  be  very  glad  to  have  the 
^2,000  in  addition;  a  part  of  the  original  bequest  he  would 
not  have  taken  without  some  such  provision." 


246  APPEALS  IN  EaUlTY. 

Ford  V.I.  Porter. 

DuNKiN,  Ch.  The  facts  of  this  case  will  appear  from  the 
pleadings  and  the  evidence  of  Clement  H.  Stevens,  one  of 
the  defendants,  examined  by  consent. 

The  first  and  second  clauses  of  the  A.  A.  1S41,  (11  Stat., 
154,)  are  directed  against  beqaests  or  gifts  of  slaves,  with  a 
view  to  emancipation.  The  questions  presented  in  this 
cause  arise  under  the  third  and  fourth  clauses  of  the  Act. 
By  the  third  it  is  declared  that,  "any  bequest,  gift  or  convey- 
ance of  any  slave  or  slaves,  accompanied  with  a  trust  or 
confidence,  either  secret  or  expressed,  that  such  slave  or 
slaves  shall  be  held  in  nominal  servitude  only,  shall  be  void 
and  of  no  effect."  It  is  further  declared  that  the  donee,  or 
trustee,  shall  be  liable  to  deliver  up  such  slave  or  slaves,  or 
account  for  the  value  thereof,  for  the  benefit  of  the  distribu- 
tees, or  next  of  kin,  of  the  person  making  such  bequest,  gift, 
or  conveyance. 

The  fourth  clause  declares  that  "any  devise  or  bequest  to 
a  slave  or  slaves,  or  to  any  person  upon  a  trust  or  confidence, 
secret  or  expressed,  for  the  benefit  of  any  slave  or  slaves, 
shall  be  null  and  void." 

The  inquiry  is,  first,  whether  the  bequest  of  the  slaves, 
George,  Sam,  Francis  and  Edwin,  falls  within  the  inhibition 
of  the  statute  ?  The  original  wish  and  purpose  of  the  testa- 
trix, in  relation  to  these  slaves,  are  apparent  from  the  volun- 
tary admissions  in  the  answer  of  the  executor.  He  admits 
that  she  had  expressed  a  desire  that  "her  slaves  should  be 
emancipated,"  and  that  she  relinquished  her  purpose  of  hav- 
ing them  emancipated,  upon  the  assurance  of  her  legal 
adviser  "that  this  could  not  be  done  under  the  laws  of  the 
State."  Foiled  in  this  object,  *he  testatrix  made  the  provis- 
ion now  to  be  considered.  The  language  is  as  follows  :  "  I 
give  and  bequeath  to  my  good  friends.  Dr.  John  Bellinger, 
Clement  H.  Stevens,  Thomas  Lehre,  and  Charles  Postell 
Dawson,  and  the  survivors  and  survivor  of  them,  my  faith- 
ful negro  slaves,  George,  Sam,  Francis,  Edwin,  Sarah  and 
Rose,  with  a  request  that  they  will  extend  to  the  said  slaves 


APPEALS  IN  EaUITY.  '^47 

Charleston,  January,  1860. 

all  ihe  indulgence,  privilege  and  consideration  wliich  tlie  law 
will  allow  them,  in  the  character  of  owners,  to  extend  to 
them."  After  devising  a  lot  of  land,  witii  store  thereon,  to 
her  kind  friend,  Dr.  Bellinger,  in  consideration  of  his  per- 
sonal kindness  to  her,  and  in  satisfaction  of  his  claim  for 
professional  services,  the  testatrix  directs  a  sale  of  all  the 
residue  of  her  estate,  except  her  slaves  and  the  lot  aforesaid, 
and  from  tl*e  proceeds  she,  in  the  first  place,  bequeaths  to 
the  friends  aforesaid,  "and  the  survivors  and  survivor  of 
them,  the  sum  of  two  thousand  dollars,  to  enable  them  to 
support  the  said  slaves,  George,  &c.,  when  they,  from  age  or 
sickness,  may  become  chargeable  upon  them."  Certain  other 
pecuniary  legacies  are  then  given,  and  the  rest  and  residue 
of  the  proceeds  (if  any)  are  bequeathed  to  her  said  friends,  and 
the  survivor  of  them,  &c.,  "  in  the  same  manner,  and  for  the 
same  purpose,  as  hereinbefore  expressed,  in  relation  to  the 
legacy  to  them  of  two  thousand  dollars."  By  a  codicil  to 
the  will,  the  bequest  of  Rose  and  Sarah  is  revoked,  and 
they  are  directed  to  be  sold,  and  it  is  further  declared  that 
"  the  legacy  of  two  thousand  dollars,  made  in  said  will,  shall 
enure  for  the  support  of  my  other  four  faithful  slaves,  George, 
Sam,  Francis  and  Edwin,  in  the  manner  stated  in  the  said 
will."  Mr.  Stevens  testified  that  the  four  slaves  thus  be- 
queathed were  "all  able  bodied  men,  and  about  in  the  prime 
of  life." 

In  giving  construction  to  statutes  like  that  of  1841,  it  is 
the  duty  of  the  Court  to  consider  the  existing  mischief  as 
well  as  the  remedy,  and  to  give  such  reasonable  interpreta- 
tion as  will  advance  the  remedy  and  suppress  the  mischief. 
So,  in  giving  construction  to  wills,  the  primary  object  of  judi- 
cial inquiry  is  the  purpose  intended  by  the  testator  to  be 
accomplished.  In  search  of  this  intention,  the  Court  may 
look,  not  only  to  the  entire  instrument,  but  to  the  condition 
of  the  testator  and  of  the  property. 

Taking  together  the  testamentary  provisions  in  relation  to 
George,  Sam,  Francis  and  Edwin,  was  it  the  intention  of  the 


248  APPEALS  IN  EQUITY. 

Ford  vs.  Porler. 

testatrix  to  confer  a  personal  benefit  upon  the  parties  in 
whom  she  vested  the  legal  title,  or  was  the  bequest  made  for 
the  benefit  of  the  slaves,  and  (as  has  been  elsewhere  said) 
was  "  the  title  intended  as  a  mere  power  to  feed  that  trust.'' 

It  is  manifest  from  the  style  and  language  of  the  will,  that 
the  testatrix  was  not  without  the  advantage  of  legal  advisers. 
When  she  intended  a  personal  benefit  she  said  so — without 
circumlocution — and  in  apt  words  to  give  effect  to  her  pur- 
pose. Gratefully  recognizing  the  personal  kindness,  as  well 
as  the  professional  devotion  of  Dr.  Bellinger,  she  devises  the 
lot  and  store  at  the  North-East  corner  of  Smith  and  Calhoun 
streets  to  him,  "  his  heirs  and  assigns."  To  the  daughter  of 
her  friend,  Mr.  Dawson,  she  bequeaths  one  thousand  dol- 
lars ;  and  the  like  amount  "  to  the  little  son  of  her  friend, 
Clement  H.  Stevens."  Bnt,  in  the  bequest  of  the  four  slaves 
to  her  four  friends,  they  are  left  to  these  gentlemen  (by  name), 
"  and  the  survivors  and  survivor  of  them."  These  friends 
were  strangers  to  the  testatrix  in  blood,  and  by  connexion. 
They  were  equally  strangers  to  each  other.  They  enjoyed  in 
common  the  advantage  of  high  character,  and  they  possessed 
in  common  the  confidence  of  the  testatrix.  "  There  is  no 
magic  in  particular  words,  (says  an  approved  elementary 
writer,  Hill  on  Trustees,  65,)  and  any  expressions,  that 
show  unequivocally  the  intention  of  the  parties  to  create  a 
trust,  will  have  the  same  effect."  And  Lord  Eldon,  in  Kifig 
7fs.  Denison,  1  Ves.  &  B.,  273,  says,  "  that  the  word  '  trust,'  is 
not  made  use  of,  is  a  circumstance  to  be  attended  to,  but 
nothing  more:  if  the  whole  frame  of  the  instrument  creates 
a  trust,  for  the  particular  purpose  of  satisfying  which,  the 
estate  is  devised,  the  law  is  the  same,  though  the  word  'trust' 
is  not  used."  Viewed  in  connection  with  tlie  circumstances, 
the  words  of  limitation  in  the  bequest  are  only  less  significant 
than  if  it  had  been  "  to  them,  and  their  successors  in  office." 
The  obvious  intent  was  to  establish  a  fiduciary  relation, 
founded  upon  personal  confidence. 

But  the  bequest  is  accompanied  "  with  a  request  that  they 


APPEALS  IN  EaUITY.  249 

Charleston,  January,  1S60. 

will  extend  to  the  said  slaves  all  the  indulgence,  privilege  and 
consideration  which  the  law  will  allow  them  in  the  character 
of  owners,  to  extend  to  them."  "I  will  lay  down  the  rule  as 
broad  as  this,"  said  Lord  Alvanley,  in  Malim  vs.  Keis^hley,  2 
Ves.,  Jan.,  333,  "  wherever  any  person  gives  property,  and 
points  out  the  object,  the  property,  and  the  way  in  which  it 
shall  go,  that  does  create  a  trust,  unless  he  shows  clearly,  that 
his  desire  expressed  is  to  be  controlled  by  the  party,  and  that 
he  shall  have  an  option  to  defeat  it."  "  If  a  testator  shows 
his  desire  that  a  thing  shall  be  done,  unless  there  are  plain 
express  words,  or  necessary  implication,  that  he  does  not 
mean  to  take  away  the  discretion,  but  intends  to  leave  it  to 
be  defeated,  the  party  shall  be  considered  as  acting  under  a 
trust."  The  owners  of  slaves  may  hold  them  in  merely 
"nominal  servitude,"  The  Legislature  has  not  tliought 
proper  to  interfere,  or  to  restrict  the  degree  of  indulgence, 
which  the  master  may  extend  to  his  slave.  But  they  have 
declared  void  any  gift  or  bequest  of  a  slave  by  one  man  to 
another,  "  upon  any  confidence,  express  or  implied,  that  such 
slave  shall  be  held  in  nominal  servitude  only."  So,  the  owner 
of  any  slave  may  lawfully  remove  him  to  a  free  State,  and 
there  have  him  emancipated.  The  first  clause  of  the  Act  of 
1841  declares,  that  any  bequest,  &c.,  of  a  slave,  with  such 
view,  shall  be  utterly  void  and  of  no  effect,  and  that  such 
slave  shall  be  assets  for  the  payment  of  debts,  for  distribution 
or  to  escheat,  as  the  case  may  be. 

But  the  actual  owners  of  slaves  are  subject  to  certain 
responsibilities.  Being  entitled  to  their  services  in  their  days 
of  usefulness,  they  are  bound  to  maintain  them  in  age  and 
infirmity.  The  subjects  of  this  legacy  are  four  able  bodied 
male  slaves,  in  the  prime  of  life.  Looking  to  the  manner  in 
which  she  had  enjoined  upon  her  friends  they  were  to  be 
treated,  the  testatrix  deemed  it  but  just  that  they  should  be 
relieved  from  this  contingent  burthen.  She,  therefore,  not 
only  beqtieathcd  to  them,  or  the  survivor  of  them,  the  sum  of 
two  thousand  dollars,  primarily  charged  upon  the  jtroceeds 


250  APPEALS  IN  EaUITY. 

Ford  vs.  Porter. 

of  Iier  estate,  "to  enable  them  to  support  the  said  slaves, 
when  they,  from  age  or  sickness,  might  become  chargeable 
upon  them,"  but  she  bequeaths  also  to  them,  for  the  same 
purpose,  the  rest  and  residue  of  her  estate  after  payment  of 
her  debts  and  legacies.  The  Court  is  of  opinion,  that  these 
pecuniary  legacies  are  void  under  the  fourth  clause  of  the 
Act  of  1841,  but  they  serve  to  indicate  the  desire  of  the  tes- 
tatrix that  the  legal  title,  with  which  she  had  clothed  her 
friends,  should  not  become  onerous  to  them. 

The  great  and  leading  object  of  these  several  bequests  was, 
for  the  supposed  benefit  of  the  slaves,  and,  in  order  to  ascer- 
tain the  purpose,  the  several  provisions  must  be  taken  together, 
and  regarded  as  one  scheme.  Nor  does  it  improve  the  char- 
acter of  the  bequest  that  some  incidental  advantage  might 
arise  to  those  who  held  the  legal  title,  and  a  much  greater 
advantage,  if  they  thought  proper  to  treat  the  slaves  in  the 
manner  which  tlieir  own  judgment  indicated,  independent  of 
the  feeble,  and,  it  may  be,  ill  considered  request  of  a  weak 
and  aged  mistress.  The  Court  of  Appeals  had  occasion  re- 
cently to  examine  this  view  in  a  case  from  Laurens,  Belcher 
vs.  McKelvei/,  Mss.  May,  1859.  It  is  the  intention  of  the  ^e*- 
iatrix,  and  not  the  conduct,  actual  or  probable,  of  the  fidu- 
ciary legatee,  which  determines  the  validity  or  invalidity  of 
the  bequest  in  reference  to  the  Act  of  1841.  As  Lord  Alvan- 
ley  says,  "  when  a  man  gives  property  and  undertakes  to  point 
out  the  way  in  which  it  shall  go,  that  creates  a  trust;"  so, 
when  a  testator  bequeaths  slaves  and  undertakes,  by  injunc- 
tion, request,  or  otherwise,  to  prescribe  that  they  shall  enjoy 
"  all  the  indulgence,  privilege  and  consideration"  which  the 
law  allows  owners  to  extend  to  them,  the  donee  takes  them 
on  a  trust,  or  confidence,  which  he  is  not  at  liberty,  in  good 
faith,  to  disregard,  and  which  the  policy  of  the  law,  never- 
theless, deprecates.  Free  negroes,  or  free  persons  of  color,  are 
sometimes  very  useful  in  the  community — and  the  better, 
because  they  are  few.  But  the  greatest  nuisances  are  quasi 
slaves— stalwart  men,  who  have  the  same  moral  control  over 


APPEALS  IN  EQUITY.  251 

Charleston,  January,  1S60. 

their  nominal  owners  as,  in  this  case,  George,  Sam,  Francis 
and  Edwin  might  attempt  to  exercise,  with  a  copy  of  their 
mistress's  injunction  in  their  pockets  that  they  should  have 
extended  to  them  "all  the  indulgence,  privilege  and  consider- 
ation," not  which  the  good  sense  of  these  gentlemen  might 
deem  proper  to  extend,  but  all  which  the  law  permitted  owners 
to  allow  to  their  slaves.  It  creates  an  anomaly  inconsistent 
with  the  simplicity  of  our  institutions  and  with  the  policy  of 
the  country,  and  which  it  was  one  of  the  prominent  purposes 
of  the  Act  of  1S4I  elTectuaily  to  suppress. 

It  is  declared  that  the  bequest  of  the  slaves,  George,  Sam, 
Francis  and  Edwin,  is  null  and  void;  and,  in  conformity 
with  the  principle  adjudicated  in  Escheator  vs.  Daui^erfield, 
S  Rich.  Eq.,  95,  it  is  ordered  and  decreed  that  the  said  slaves 
be  delivered  up  to  the  plaintiff. 

It  is  further  ordered  and  decreed,  that  it  be  rel'erred  to  one 
of  the  Masters  of  this  Court  to  take  an  account  of  the  trans- 
actions of  the  defendant  as  executor  of  Elizabeth  Williman, 
deceased,  and  that  he  report  thereon,  with  leave  to  report 
any  special  matter.  Parties  to  be  at  liberty  to  apply  for  such 
further  orders  as  may  become  necessary,  ('osts  to  be  paid 
out  of  the  estate  of  (he  testatrix. 

The  defendants  appealed: 

Because  the  bequest  of  the  slaves,  and  the  legacy  in  ques- 
tion, were  absolute  and  lawful,  and  in  nowise  in  violation  of 
the  Act  of  1841. 

Browji,  Porter,  for  appellants,  insisted  that  the  words  of 
the  bequest  were  precatory,  and  not  imperative,  and  that 
under  the  Act  of  1841,  there  can  be  no  trust  or  confidence  in 
violation  of  the  law,  where  the  legatee  or  donee  denies  the 
trust  or  confidence  and  claims  the  property  as  his  own  abso- 
lutely. McLeish  vs.  Birch,  3  Strob.  Eq.,  225 ;  Escheator  vs. 
Danqei'ficld,  8  Rich.  Eq.,  102;  Skrine  vs.  fi'alker,  3  Rich. 
Eq.,  266  ;  Belcher  vs.  McKelvey,  Col.,  May,  1859 ;  1  Am.  Law 


252  APPEALS  IN  EaUITY. 

Ford  vs.  Porter.  • 

Reg.,  361 ;  Hill  on  Trust.,  97;  6  Eng.  Con.  Ch.  R.,  300.  That 
under  the  third  and  fourth  sections  of  the  Act  of  184!,  the 
legal  estate  remains  in  the  legatees,  and  no  person  but  the 
distributee,  or  next  of  kin  of  the  testatrix  is  entitled  to  claim 
against  them.     J^ose  vs.  Hanahan,  10  Rich.,  469. 

Martin,  contra. 

The  opinion  of  the  Court  was  delivered  by 

Johnston,  J.  There  may  be  circumstances  of  suspicion 
in  this  case.  But  it  is  a  very  solemn  act  to  set  aside  the  will 
of  a  testator  and  the  legal  rights  of  parties;  and  it  should  not 
be  done  unless  strong  grounds  appear  to  support  such  a  pro- 
ceeding. 

By  the  third  clause  of  the  Statute  of  1841,  11  Stat.,  154,  it 
is  declared,  "that  any  bequest,  gift,  or  conveyance,  of  any 
slave  or  slaves,  accompanied  with  a  trust  or  confidence, 
either  secret  or  expressed,  that  such  slave,  or  slaves,  shall 
be  held  in  nominal  servitude  only,  sliall  be  void  and  of  no 
effect;  and  the  donee,  or  trustee,  shall  be  liable  to  deliver  up 
such  slave,  or  slaves,  or  account  for  the  value  thereof,  for  the 
benefit  of  the  next  of  kin  of  the  person  making  such  bequest, 
gift,  or  conveyance." 

This  law  has  been  supposed  to  be  violated  by  the  follow- 
ing provision  in  the  will  of  the  late  Mrs.  Williman : 

"I  give  and  bequeath  to  my  good  friends,  Dr.  John  Bel- 
linger, Clement  H.  Stevens,  Thomas  Lehre,  and  Charles 
Postell  Dawson,  and  the  survivors  and  survivor  of  them,  my 
faithful  negro  slaves,  George,  Sam,  Francis,  Edwin,  Sarah 
and  Rose;  with  a  request  that  they  will  extend  to  the  said 
slaves  all  the  indulgence,  privilege  and  consideration  which 
the  law  will  allow  them,  in  the  character  of  owners,  to  extend 
to  them." 

The  legatees,  in  their  answer,  explicitly  deny  that  there 
was  or  is  any  trnst  or  confidence,  secret  or  expressed,  accom- 
panying said  bequest,  to   hold  said  slaves  in  a  condition  of 


APPEALS  IN  EaUITY.  253 

Charleston,  January,  IS60. 

virtual  freedom  or  nominal  serviliide;  and  one  of  them,  who 
was  examined  at  the  instance  of  the  plaintiff,  deposed  that 
he  would  regard  these  slaves  as  much  his  as  the  rest  of  his 
property,  except  as  affected  by  survivorship,  and  would 
appropriate  the  wages  to  his  own  use. 

It  seems  to  the  Court  that  this  is  a  sufficient  refutation  of 
the  existence  of  a  secret  trust  or  understanding.  The  case 
must  then  be  left  to  depend  upon  what  is  expressed  on  the 
face  of  the  will.  I  do  not,  for  myself,  see  that  an  intention 
entertained  by  the  testatrix,  but  not  made  known  to  the 
legatees,  nor  participated  in  by  them,  would  be  sufficient  to 
affect  their  right  of  property  in  the  slaves  bequeathed  to 
them;  nor  do  I  see  that  such  a  point  arises  under  this  clause 
of  the  statute,  the  terms  of  which  do  not  refer  to  the  inten- 
tion of  the  person  making  the  gift.  If  I  remember  the  cases 
of  Belcher,  McKelvey  and  Tucker,  referred  to  in  the  decree, 
they  arose  under  another  clause,  relating  to  provisions  for 
removing  slaves  from  the  State,  with  intention  to  emanci- 
pate them. 

The  case  depends  not  upon  the  intention  entertained,  but 
upon  that  expressed  by  this  testatrix;  and  upon  this  the  law 
was  well  laid  down  by  Chancellor  Dunkin,  in  Foi^d  vs.  Dan- 
gcrfield,  8  Rich.  Eq.,  102:  "There  is  nothing  in  the  letter  or 
the  policy  of  the  law,  which  prohibits  a  testator,  in  bequeath- 
ing a  slave,  or  slaves,  to  his  son,  to  bespeak  for  them,  or 
either  of  them,  his  kind  treatment,  or  the  mode  of  treatment. 
The  relation  of  master  and  slave  remains  the  same.  The 
rights  and  obligations  of  proprietorship  are  unimpaired." 

"  Circumstances  might  induce  the  son  to  change  his  treat- 
ment, in  consequence  of  the  conduct  of  the  slaves." 

And  the  great  authority  of  Lord  Eldon  is  thus  brought  out: 
"  He  observed  that,  in  the  course  of  the  discussion,  a  doubt 
had  been  raised,  how  far  it  was  competent  for  a  testator  to 
give  to  his  friend  a  personal  estate,  to  apply  it  to  such  pur- 
poses of  bounty,  not  arisim;  to  trust,  as  the  testator,  him- 
self, would  have   been    likely  to  apply  it  to.     That  question, 


254  APPEALS  IN  EaUITY. 


Ford  vs.  Porter. 


as  far  as  this  Court  lias  to  do  with  it,  depends  altogether  upon 
this:  if  the  testator  meant  to  create  a  trust,  and  not  to  make 
an  absolute  gift,  but  the  trust  is  ineffectually  created,  is  not 
expressed  at  all,  or  fails,  the  next  of  kin  take.  On  the  other 
hand,  if  the  party  is  to  take,  himself,  it  must  be  upon  this 
ground,  according  to  the  authorities:  that  the  testator  did  not 
mean  to  create  a  trust,  but  intended  a  gift  to  that  person  for 
his  own  use  and  benefit;  for  if  he  was  intended  to  have  it 
entirely  in  his  own  power  and  discretion,  whether  to  make 
the  application  or  not,  it  is  absolutely  given,  and  it  is  the 
effect  of  his  own  will,  and  not  the  obligation  imposed  by  the 
testament,  the  one  inclining,  the  other  compelling  him  to 
execute  the  purpose.  But  if  he  cannot  be,  or  was  not  in- 
tended to  be,  compelled,  the  question  is  not  then  upon  a  trust 
that  has  failed,  or  the  intent  to  create  a  trust  ;  but  the  will 
must  be  read  as  if  no  such  intention  was  expressed,  or  to  be 
discovered  in  it."     (Vide  also,  8  Rich.  Eq.,  108-9.) 

'•^  Prima  facie,  an  absolute  interest  is  given,  and  the  question 
is,  whether  precatory,  not  mandatory,  words  imj)ose  a  trust 
upon  that  person  ?" 

To  this  well  established  doctrine,  this  Court  agrees;  and  it 
is  as  little  satisfied  that  to  bequeath  slaves  with  a  request  that 
the  legatee  shall  extend  to  them  "  all  the  indulgence,  privi- 
lege and  consideration  which  the  law  will  allow  them,  in  the 
character  of  owners,  to  extend  to  them,"  takes  away  their 
right  of  property  in  the  slaves,  as  it  is  that  such  treatment  is 
opposed  to  the  policy  of  the  law. 

Before  leaving  this  part  of  the  case,  it  may  be  proper  to 
say,  that  it  is  unnecessary  to  decide  the  question  whether  the 
escheator  is  competent  to  raise  this  question,  or  whether  gifts 
of  this  description  are  voidable  only  by  the  next  of  kin.  That 
point  was  not  necessarily  involved  in  Vose  vs.  Hanahan,  10 
Rich.,  469,  where  it  is  supposed  to  have  been  decided;  and 
I  have  too  much  doubt  upon  it  to  commit  myself  until  it 
comes  directly  before  the  Court. 

The  next  question  arises  under  the  4th  sec.  of  the  Act  of 


APPEALS  IN  EaUITY.  255 

Charleston,  January,  1S60. 

1841, 11  Stat.,  154,  which  declares  that  "any  devise"  or  bequest 
to  a  slave  or  slaves,  "  or  to  any  person  upon  a  trust  or  confi- 
dence, secret  or  expressed,  for  the  benefit  of  any  slave  or 
slaves,  shall  be  null  and  void." 

It  has  been  supposed  that  this  provision  is  violated  by  the 
following  legacy  of  this  testatrix: 

"I  give  to  my  friends.  Dr.  John  Bellinger,  &c.,"  the  sum  of 
^2,000,  (increased  by  a  codicil,)  to  enable  them  to  support 
the  said  slaves,  George,  &c.,  "  when  they,  from  age  or  sick- 
ness, may  become  chargeable  upon  them." 

Here  again  the  legatees  deny  all  secret  trust,  and  claim  the 
legacy,  leaving  the  question  to  be  decided,  whether  any  trust 
arises  upon  the  face  of  the  will. 

After  the  authorities,  upon  the  distinction  between  cases, 
where  a  legal  benefit  passes  to  the  legatee,  to  be  used  as  he 
pleases,  and  cases  where  the  legatee  is  not  intended  to  have 
the  beneficial  interest,  it  is  only  necessary  to  refer  to  the  case 
of  Benson  vs.  fVhitham,  6  Cond.  Eng.  Chan.  Rep.,  304-5, 
where  the  very  point  is  decided  that  a  gift  to  enable  the 
legatee  to  confer  a  bounty  is  not  a  trust,  but  a  beneficial 
legacy.  How  can  a  gift  to  the  master  be  a  legacy  or  benefit 
to  the  slave,  except  at  the  master's  discretion  ? 

It  is  ordered,  that  the  decree  be  reversed,  and  the  bill  dis- 
missed. 

O'Neall,  C.  J.,  AND  Wardlaw,  J.,  concurred. 
Decree  reversed. 


256  APPEALS  IN  EaUlTY. 


Toomer  vs.  Rhodes. 


John  R.  Toomer  vs.  Thomas  W.  Rhodes  and  others. 
Limitation  of  Estates — Practice. 

A  conveyed  property  to  a  trustee  for  the  use  of  the  grantor  for  life,  and  after  his 
death,  "in  case  he  died  unmarried  and  without  children,"  over.  A,  having 
married  and  had  a  child,  filed  this  hill  against  the  trustee  and  remaindermen,  to 
have  the  deed  cancelled,  contending  that  the  contingencies  had  happened 
which  defeated  the  limitation  over.  The  Court  refused  to  interfere  before  the 
death  of  A,  holding  that,  in  the  situation  of  the  parlies,  it  was  sufficient  that 
a  reasonable  doubt,  as  to  the  construction  of  the  deed,  should  be  entertained. 

BEFORE  DUNKIN,  CH.,  AT  BEAUFORT,  FEBRUARY,  1859. 

DuNKiN,  Ch.  On  the  15th  January,  1846,  John  Ralph 
Toomer,  (the  plaintiff,)  in  the  presence  of  William  B.  Pick- 
ling and  John  J.  Dupong, executed  the  deed,  of  which  a  copy- 
is  filed  as  an  exhibit  with  the  bill,  and  which  was  recorded 
in  the  Register  of  Mesne  Conveyance  of  Beaufort  district, 
on  2d  February,  1S46.  By  this  deed,  the  plaintiff  conveyed 
to  the  defendant,  Thomas  W,  Rhodes,  of  Prince  Williams' 
parish,  a  plantation  called  ''  Dalton,"  and  thirteen  slaves,  in 
trust  for  the  grantor  during  his  natural  life;  and  from,  and 
after  his  decease,  m  case  he  died  ^'■unmarried  and  without 
children'''  then  to  pay  over  one-half  the  annual  income  or 
profits  to  Mrs.  Mary  E.  Toomer,  (plaintiff's  mother,)  if  she 
should  be  then  living,  and  so  long  as  she  lived;  and  to  invest 
the  other  moiety  for  the  use  of  Benjamin  D.  Rhodes,  son  of 
the  said  Thomas  ^V.  Rhodes;  and  upon  the  decease  of  Mrs. 
Toomer,  to  invest  the  whole  for  the  benefit  of  the  said  Ben- 
jamin D.  Rhodes,  until  he  attained  the  age  of  twenty-five 
years,  and  then  to  convey  and  assure  "  .he  whole  of  the  said 
property,  with  the  accumulations,  to  the  said  Benjamin  D. 
Rhodes,  to  him  and  his  heirs,  forever,  in  fee  simple,  and  to 
no  other  uses  whatever." 


APPEALS  IN  EaUITY.  257 

Charleston.  January,  18C0. 

In  process  of  time,  the  plaintiff  married — and  a  child  lias 
been  since  born  to  him;  the  mother  and  child  being  now 
alive.  This  proceeding  was  therenpon  instituted  to  have  the 
said  deed,  of  15th  Jannary,  1S46,  delivered  up  to  be  cancelled, 
upon  the  ground  tliat  the  same  was  f^inctus  officio.  The 
answer  of  the  trustee  states  that  the  deed  was  executed  con- 
trary to  his  wishes  and  against  his  protestations,  and  that  he 
accepted  the  trust  only  upon  the  urgency  of  the  plaintitT. 
But  that,  having  done  so,  he  did  not  regard  himself  at  liberty 
to  do  any  act  which  might  prejudice  the  rights  of  the  cestui/ 
que  trusts.  Benjamin  D.  Rhodes  is  yet  an  infant,  and  the 
answer  filed  on  his  behalf,  is  merely  formal.  Against  Mrs. 
Mary  E.  Toomer,  an  order  pro  confesso  has  been  taken. 

The  proposition  of  the  plaintiff  is,  that  the  terms  "die 
unmarried  and  without  children,"  must  be  construed,  die 
7vithoi(t  hailing  been  married,  and  without  having  had  chil- 
dren; 1  Jarman  on  Wills,  456,  was  cited  as  anthority.  But 
upon  examination  of  the  text,  it  will  be  perceived,  that  the 
learned  commentator  disapproves  of  this  construction,  and 
adopts,  as  a  sounder  interpretation,  that  the  words  mean,  not 
having  a  ivife  or  child  at  the  time  of  his  death.  And  for  this 
construction,  he  relies  on  the  high  authority  of  Lord  Ellen- 
borough  and  Lord  Hardwicke,  as  well  as  more  recent  adjudi- 
cations. It  is  not  proposed,  at  this  time,  to  express  any  defi- 
nite opinion  upon  the  construction.  For  the  disposition  of 
the  cause,  and  in  the  situation  of  the  parties,  it  is  sufficient 
that  a  reasonable  doubt  may  well  be  entertained.  If  the 
plaintiff  should  die  without  leaving  wife  or  child,  the  con- 
juncture would  arise  upon  which  the  claims  of  Benjamin  D. 
Rhodes,  under  the  deed  of  January,  1846,  would  be  more 
satisfactorily  considered.  In  the  meantime,  no  rights  are 
affected  by  declining  to  interfere  by  cancellation  of  the  deed. 
It  is  ordered  and  decreed,  that  the  bill  be  dismissed  without 
prejudice,  but  at  the  cost  of  the  plaintiff. 

18 


258  APPEALS  IN  EaUITY. 

Toomer  ^is.  Rhodes. 

The  plaintiff  appealed  on  the  grounds: 

1.  Because,  the  gift  to  the  first  taker  being  defeasible,  on 
the  event  either  of  marrying  or  dying  without  children,  and 
both  of  the  contingencies  of  marrying  and  having  children 
having  occurred,  tho  deed  of  1846  was  functus  officio,  and 
should  be  cancelled. 

2.  Because,  the  gift  to  the  parent,  although  in  form  a  life 
interest  merely,  is,  in  effect,  the  whole  equitable  estate  defeas- 
ible on  certain  conditions,  and  there  being  nothing  limited  to 
the  children,  it  was  error  to  apply  to  such  a  case,  a  rule  of 
construction  belonging  to  those  cases  only  in  which  the  inter- 
est given  to  the  parent  is  partial,  and  the  remainder  of  the 
estate  limited  directly  to  the  children ;  it  being  plain  in  such 
cases  that  the  provision  intended  for  the  children,  must  neces- 
sarily be  referred  to  the  death  of  the  parent. 

Rhett,  Youmans,  for  appellant. 

De  Treville,  Bell,  contra. 

Ouria  per  O'Neall,  C.  J.      This  Court  concurs  in  the 
decree  of  the  Chancellor. 
It  is  therefore  affirmed. 

Johnston  and  Warlaw,  J.  J,,  concurred. 

Decree  affirmed. 


APPEALS  IN  EQUITY.  259 


Charleston,  January,  1S60. 


Ex  PARTE  William  Nayler  and  Thomas  P.  Smith. 
Creditor's  Bill — Marshalling  Assets — Practice. 

A  creditor,  who  has  failed  to  present  his  demand  within  the  time  limited  by  an 
order,  under  a  creditor's  bill,  calling  in  creditors  to  present  their  demands,  may, 
upon  contributing  his  fair  proportion  of  the  expenses  of  the  bill,  be  permitted 
to  present  and  prove  his  claim  at  any  time  before  actual  distribution  of  the 
assets. 

But  such  creditor  will  not,  it  seems,  be  saved  from  the  efiect  of  his  neglect,  if  any 
defence,  arising  from  the  lapse  of  time  prior  to  the  filing  of  his  petition  for 
leave  to  present  and  prove  his  demand,  can  be  made. 

BEFORE  DUNKIN,  CH.,  AT  BEAUFORT,  MARCH,  1S59. 

DuNKiN,  Cn.  Mr.  Davant  reports  that  on  23d  of  Novem- 
ber, 1855,  proceedings  were  instituted  in  tlii.s  Court,  under  the 
title  of  McBride  vs.  Kirk,  for  tlie  purpose  of  marshalHng  the 
assets  and  administering  the  estate  of  RolHn  H.  Kirk, 
deceased.  On  8th  December,  1855,  the  commissioner  was 
ordered  to  call  in  the  creditors,  by  public  notice,  in  the  usual 
way.  This  was  accordingly  done,  and  at  February  sittings, 
1856,  claims  were  established  to  a  large  amount — further 
time  was  given;  and  at  February  sittings,  1857,  a  small 
additional  amount  was  established,  making  an  aggregate  of 
about  $47,500. 

The  real  estate  had  been  sold  by  the  commissioner,  and  in 
January,  1858,  he  notified  the  administratrix  that  a  deficiency 
existed  to  pay  the  debts  thus  established,  and  which  had  been 
ordered  to  be  paid,  of  about  $3,000;  and  on  3d  May,  1858, 
a  friend  of  the  family  paid  into  his  hands  the  sum  of  $3,140, 
which  made  up  the  deficiency. 

On  26th  April,  1858,  a  petition  had  been  filed  on  behalf  of 
the  minor  children  of  Rollin  H,  Kirk,  in  the  name  of  Lewis 


260  APPEALS  IN  EaUITY. 

Ex  parte  Nayler  and  Smith. 

W.  Garth,  their  guardian,  stating  that  he  was  the  brother  of 
their  mother,  (who  was  also  administratrix  of  her  deceased 
husband,  Rollin  H.  Kirk,)  that  she,  with  her  children,  were 
about  to  remove  to  Kentucky,  where  the  petitioner  resided — 
that  the  estate  of  the  intestate  consisted  of  about  twenty 
negroes,  to  two-thirds  of  which  his  wards  were  entitled — that 
the  debts  of  the  intestate  were  paid  or  provided  for,  and  pray- 
ing leave  to  remove  their  property.  On  11th  May,  1858,  the 
commissioner  reported  that  the  facts  were  as  stated,  and 
thereupon.  Chancellor  Wardlaw  made  an  order  that  the  peti- 
tioner have  leave  to  remove  the  property  of  his  wards  to  the 
State  of  Kentucky.  Both  Mrs.  Kirk  and  her  children  removed 
to  Kentucky  with  the  negroes,  where  they  have  since  con- 
tinued to  reside. 

About  14th  February,  1859,  this  petition  was  filed.  The 
petitioners  had  a  claim  of  f  532  41  against  the  estate  of  Rollin 
H.  Kirk,  deceased,  which  was  presented  and  established  prior 
to  the  report  of  February,  1856,  and  is  therein  provided  for 
and  ordered  to  be  paid.  They  pray  now  to  be  allowed  to 
establish  other  claims.  No  evidence  was  offered — the  peti- 
tioners' counsel  declined  to  offer  evidence — that  these  claims 
had  ever  been  presented  either  to  the  commissioner,  or  to  the 
administratrix,  or  to  the  solicitor  of  the  estate,  nor  was  any 
evidence  offered  of  the  reasons  for  the  omission. 

The  commissioner  reports  that  he  has  no  funds,  except 
those  already  ordered  to  be  paid  to  creditors,  whose  claims 
have  been  long  since  established.  It  is  clear  that  these  credi- 
tors never  would  have  allowed  the  order  of  11th  May,  1858, 
for  the  removal  of  the  property  to  be  made,  if  tiiu  fimds  to 
satisfy  their  demands  had  not  been  paid  to  the  commissioner. 
The  order  of  11th  May,  1858,  implied  a  firtal  distribution  of 
the  funds  among  the  distributees.  If  the  petitioners  have 
any  claim  against  the  estate  of  Rollin  H.  Kirk,  deceased,  their 
laches  has  precluded  them  from  any  aid  on  the  part  of  this 
Court 

It  is  ordered  and  decreed,  that  the  petition  be  dismissed. 


APPEALS  IN  EaUITY.  261 

Charleston,  January,  1860. 

The  petitioners  appealed  upon  the  grounds: 

1.  Because  the  right  of  the  petitioners  to  prove  their  claim 
under  the  order  rnadc  in  the  case  of  McBride  vs.  Kirk,  call- 
ing upon  creditors  to  present  their  demands,  is  in  no  manner 
dependent  upon  "  whether  the  claim  was  ever  presented  to 
the  commissioner,  or  the  administratrix,  or  the  solicitor  of 
the  estate,"  hut  upon  the  question  whether  there  is  a  residuary 
fund  in  the  Court,  or  in  the  hands  of  the  administratrix,  at 
the  time  of  the  application. 

2.  Because,  if  the  demands  of  the  petitioners  ought  to 
have  been  first  rendered  to  the  solicitor  of  the  estate,  or  the 
administratrix,  before  they  could  claim  the  right  to  prove 
them  before  the  commissioner,  the  petition,  which  is  sworn 
to,  distinctly  stated,  and  the  fact  has  never  been  denied  or 
contradicted,  that  the  said  demands  were  not  only  rendered 
to  the  solicitor,  but  also  to  the  commissioner;  and  the  refer- 
ence made  at  the  hearing  of  the  petition,  in  this  case,  ought 
to  have  been,  not  merely  that  the  commissioner  should  report 
what  funds  were  in  his  hands,  and  whether  any  final  decree 
had  been  made,  but  whether  the  petitioners  did  render  their 
demands  as  stated  in  the  petition. 

3.  Because  the  petition  is  always  for  leave  to  come  in  and 
prove  "  7H/72C  pro  tnnc,^^  which  pre-supposes  the  neglect  or 
omission  of  the  creditor  to  present  or  give  notice  of  his  de- 
mand before  the  expiration   of  the  time  limited  by  the  order. 

4.  Because  his  Honor  erred  in  supposing  there  was  any 
final  decree  or  order  for  the  distribution  of  the  residuary 
fund  in  the  hands  of  the  administratrix;  the  order  made  in 
'■''  ex  parte  Garth"  was  outside  of  the  case  made  at  chambers, 
and  without  the  knowledge  of  the  creditors,  besides  which, 
it  appears  by  the  said  order  itself,  that  one-third  part  of 
twenty  negroes  still  remained  in  the  hands  of  the  adminis- 
tratrix. 

5.  Because  it  appears  by  the  commissioner's  report,  which 
was  before  his  Honor,  that  in  185H,  there  were  twenty-five 
negroes,  part  of  the  assets  of  the  estate  of  Rollin   H.  Kirk, 


262  APPEALS  IN  EaUlTY. 

Ex  parte  Nayler  and  Smith. 

in  the  possession  of  the  administratrix,  subject  to  the  dis- 
position and  order  of  the  Court,  and  it  is  submitted,  that  it 
was  not  in  the  power  of  the  said  administratrix,  by  consent- 
ing to  an  order  taken  at  chambers  without  the  knowledge  of 
the  parties  to  the  bill,  to  withdraw  any  part  of  the  said 
negroes  from  the  control  of  the  said  Court. 

6.  Because  the  said  Mrs.  Kirk  is  now  in  possession  of  the 
said  negroes,  as  administratrix,  and  not  as  distributee,  and 
all  of  the  negroes,  as  well  those  in  her  possession,  as  those  in 
the  possession  of  her  children,  are  liable,  at  least,  for  the 
debts  which  have  been  proved,  should  the  funds  in  the 
hands  of  the  commissioner,  from  any  cause,  prove  insuffi- 
cient. 

De  Treville,  Pope,  for  appellants. 
Fickling,  contra. 

The  opinion  of  the  Court  was  delivered  by 

Wardlaw,  J.  In  bills  to  marshal  and  administer  the 
assets  of  embarrassed  estates  in  the  Court  of  Equity,  com- 
monly called  creditors'  bills,  the  practice  is  well  settled  to 
allow  a  creditor  wh )  has  failed  to  present  and  prove  his 
claim  before  the  day  appointed  in  the  order  calling  in  credi- 
tors, still  to  come  in  with  his  claim,  at  any  time  before  the 
actual  distribution  of  the  assets,  upon  his  contributing  his 
fair  proportion  of  the  expenses  of  suit.  This  practice  needs 
no  vindication  beyond  that  contained  in  the  cases  of  Shu- 
brick  vs.  Shi/brick,  1  McC.  Ch.,  406,  and  ex  parte  Hanks,  Dud. 
Eq.,  233.  The  petitioners  who  seek  to  intervene  as  creditors 
in  the  case  of  McBride  vs.  Kirk,  make  a  case  within  this 
procedure.  No  final  order  for  the  distribution  of  the  funds, 
much  less  no  full  distribution,  has  been  made.  Some  of  the 
assets  are  yet  in  the  registry  of  the  Court ;  and  the  adniinis- 
tratrix  has  in  her  hands  twenty  or  more  slaves  of  the  intestate 
estate,  undertaken  to  be   administered   by  the   Court.     The 


APPEALS  IN  EaUITY.  203 

Charleston,  January,  ISfiO. 

ex  parte  order  of  May  11,  1S5S,  that  their  guardian  might 
remove  the  property  of  the  infant  distributees  beyond  the 
limits  of  the  State,  implies  no  actual  distribution,  cannot 
commit  creditors,  and  cannot  protect  the  administratrix. 
The  petitioners  otfer  to  pay  a  fair  share  of  the  expenses. 

This  petition  seems  to  have  been  filed  about  February  14, 
1859.  It  prays  that  the  petitioners  may  be  allowed  to  prove 
their  "claims  nunc  pro  /w/ic,  subject  only  to  such  legal  and 
equitable  grounds  of  objection  as  were  valid  against  said 
claims  on  February  25,  1856,"  when  the  first  report  on  debts 
was  made  by  the  commissioner.  We  think  the  petitioners 
are  entitled  to  come  in  and  prove  their  demands  ;i?//?c/;ro 
tunc,  in  the  sense  that  they  shall  not  be  barred  by  their  mere 
failure  to  present  their  demands  before  the  expiration  of  the 
time  limited  by  the  order.  But  we  can  afi"ord  no  patronage 
or  protection  to  laches.  The  Chancellor  says  in  his  decree, 
"the  petitioners'  counsel  declined  to  offer  evidence  that  these 
claims  had  ever  been  presented  to  the  commissioner,  or  to  the 
administratrix,  or  to  the  solicitor  of  the  estate,  nor  was  any 
evidence  offered  of  the  reasons  for  the  omission." 

The  petitioners  are  not  entitled  to  be  saved  from  the  con- 
sequences of  the  lapse  of  time  before  the  filing  of  their 
petition. 

It  is  ordered  and  decreed,  that  the  petitioners  have  leave  to 
prove  their  demands,  as  if  presented  February  14,  1859;  and 
that  the  circuit  decree  be  reformed  accordingly. 

0'Neai>l,  C.  J.,  AND  Johnston,  J.,  concurred. 

Decree  reformed. 


264  APPEALS  IN  EaUITY. 


Glover  vs.  Adams. 


Thomas  W.  Glover  and    others  vs.  Frances  Adams    and 

OTHERS. 

Limitation  of  Estates. 

By  marringe  settlement,  the  property  of  the  wife  was  settled  to  the  joint  use  of 
husband  and  wife  during  coverture,  and  if  the  husband  survived,  to  his  us« 
for  life,  with  remainder  to  "the  legal  heirs  and  representatives"  of  tlie  wife. 
The  husliand  survived,  and  upon  his  death,  held,  that  the  persons  entitled  to 
talce  were  the  heirs  and  distributees  of  the  wife,  including  the  husband,  at  her 
death. 

BEFORE  DUNKIN,  CH.,  AT  CHARLESTON,  JUNE,  1859. 

The  bill  was  filed  for  the  sale  and  distribution  of  certain 
property  of  Mrs.  Lydia  Adams,  deceased,  which,  upon  her 
marriage  with  Benjamin  Adams,  had  been  settled  upon 
James  W.  Gray  as  trustee  of  the  contracting  parties.  The 
clause  of  the  marriage  settlement  under  which  the  distribu- 
tion is  to  be  made,  is  as  follows,  to  wit: 

"In  trust  for  the  sole  and  separate  use,  benefit  and  behoof 
of  the  said  Lydia  Surr,  until  the  solemnization  of  the  said 
intended  marriage,  and  from  and  after  the  solemnization 
thereof,  in  trust  for  the  joint  use,  benefit  and  behoof  of  the 
said  Benjamin  Adams  and  Lydia  Surr,  during  the  time  of 
their  coverture,  without  the  said  premises,  or  any  part  of 
them,  being  in  any  way  liable  or  subject  to  the  debts  or 
incumbrances  of  the  said  Benjamin  Adams.  And  from  and 
immediately  after  the  death  of  the  said  Lydia  Surr,  should 
the  said  Benjamin  Adams  survive  her,  then  in  trust  to  and 
for  the  use,  benefit  and  behoof  of  the  said  Benjamin  during 
his  natural  life,  and  after  his  death,  to  result  to  such  person, 
or  persons,  as  the  said  Lydia  Surr  may,  by  her  last  will  and 


APPEALS  IN  EaUITY.  205 

Charleston,  January,  1S60. 

testament,  duly  executed  in  writing,  appoint  (and  the  power 
to  make  such  will  is  hereby  given  to  the  said  Lydia  Snrr, 
notwithstanding  her  coverture);  and  in  case  of  the  failure  of 
the  said  Lydia  Surr  to  make  such  will,  then,  in  trust  for  her 
legal  heirs  and  representatives ;  and  should  the  said  Lydia 
Surr  survive  the  said  Benjamin  Adams,  then  all  of  the  said 
estates  to  remain  in  the  said  Lydia,  free  and  unincumbered 
of  all  trusts." 

Benjamin  Adams  was  the  survivor  of  the  parties,  and  died, 
having  enjoyed  the  life  estate  in  the  property  as  provided  for 
in  the  deed.  Lydia  Adams  left  no  will,  and  the  parties  to 
the  suit  claim  the  property  as  her  heirs  and  legal  representa- 
tives, under  the  last  clause  of  the  limitations. 

DuNKiN,  Ch.  Until  the  marriage  of  Mrs.  Lydia  Surr  with 
Benjamin  Adams,  she  was  the  absolute  owner  of  the  prop- 
erty. After  that  time,  the  legal  estate  was  in  the  trustee; 
and  Mrs.  Adams  had  no  interest,  except  as  declared  by  the 
marriage  settlement.  It  has  been  often  remarked,  that  a 
more  liberal  construction  is  put  upon  such  deeds  than  upon 
conveyances  at  common  law.  The  intention  of  the  parties 
is  here  more  particularly  looked  to,  and  the  words  more 
made  to  bend  to  the  intention.  As  was  said  by  an  eminent 
advocate  in  a  similar  case,  "  it  is  not  what  is  the  effect  of  a 
limitation  to  a  man's  heirs,  but  who  is  meant  by  the  descrip- 
tion contained  in  the  ultimate  limitation  in  this  deed?  They 
are  words  of  description,  and  nothing  else;  and  in  order  to 
see  who  it  is  that  the  party  means  to  describe  by  that  limita- 
tion, you  must  take  into  consideration  his  professed  inten- 
tion, and  what  is  the  whole  effect  and  tendency  of  the  deed 
in  all  the  preceding  limitations."  In  giving  construction  to 
this  instrument,  it  may  be  premised  that  the  [troporly  was 
that  of  the  wife;  and,  moreover,  that  the  parties  did  not 
probably  contemplate  the  existence  of  issue,  as  no  provision 
is  made  with  reference  to  such  event.  The  primary  pro- 
vision is,  for  the  joint  use  during  coverture,  but  so  as  not  to 


266  APPEALS  IN  EaUITY. 

Glover  vs.  Adams. 

be  subject  to  the  husband's  debts.  The  provision  next  made 
is  for  the  contingency  which  actually  occurred.  "Should 
the  said  Benjamin  survive  her,  (the  said  Lydia,)  then  in  trust 
for  the  use,  benefit  and  behoof  of  the  said  Benjamin,  during 
his  natural  life;  and,  after  his  death,"  (on  failure  of  appoint- 
ment on  her  part,)  "then  in  trust  for  her  legal  heirs  and 
representatives."  In  order  to  enable  the  trustee  to  discharge 
his  duty  finally,  and  surrender  the  property  to  those  entitled, 
his  only  enquiry  is:  Who,  after  the  death  of  Benjamin 
Adams,  fulfilled  the  description  of  "the  legal  heirs  and  repre- 
sentatives" of  Lydia  Adams,  deceased?  The  enquiry  is  not 
who  may  have  been  her  heirs  at  the  time  of  her  death,  but 
what  persons  answered  that  description  at  the  time  when  the 
trustee  was  to  perform  his  final  act.  It  is  not  unlike  the 
case  of  a  legacy  to  a  class  of  persons  at  a  future  period,  in 
which  the  constant  rule  has  been,  that  all  persons  answering 
the  description  at  the  period  of  distribution,  and  none  other, 
are  entitled  to  take.  See  Matthews  vs.  Paul,  3  Swan.,  328. 
In  this  case,  the  manifest  intention  of  the  parties  was  to 
prevent  the  marital  right  from  attaching,  and,  therefore,  the 
legal  estate  was  vested  in  a  third  person.  Regard  was  had 
to  the  interest  of  the  husband  by  securing  to  him  a  joint  use 
during  the  coverture,  and  the  exclnsive  use  during  his  life, 
in  the  event  of  his  survivorship.  When  his  power  of  enjoy- 
ment should  cease,  provision  is  made  for  the  final  disposition 
of  the  property  to  such  persons  as  could  then  substantiate 
their  title  under  the  description  of  the  deed.  When  it  is 
declared  that  the  trustee  shall  hold  for  the  use  of  the  hus- 
band during  his  natural  life,  and  after  his  death,  then  in 
trust  "for  her  legal  heirs  and  representatives,"  these  latter 
are  in  contradistinction  to,  and  exclusive  of  him,  for  whom 
the  previous  use  was  declared. 

It  is  ordered  and  decreed,  that  the  trustee  account  for  his 
transactions  as  such,  and  that  the  property  be  divided  among 
the  parties  entitled  thereto,  according  to  the  principles  of  this 
decree.     Costs  to  be  paid  out  of  the  fund,  except  those  of  the 


APPEALS  IN  EaUITY.  267 


Charleston,  January,  1S60. 


adniiiiistratrix  of  Benjamin  Adams,  deceased,  which  arc  to 
be  paid  ont  of  the  assets  of  said  intestate. 

The  defendant,  Frances  Adams,  appealed  on  the  gronnd: 
That  tlie"  heirs  and  legal  representatives"  of  Mrs.  Lydia 
Adams  are  those  who  were  such  at  the  time  of  her  death  ; 
and  it  is  respcctfnlly  submitted,  that  his  Honor  erred  in  rul- 
ing, that  her  heirs  and  representatives  were  not  fixed  until 
the  death  of  Benjamin  Adams,  who  survived  her. 

Press  lei/,  for  appellant. 
Sinio7iton,  contra. 

The  opinion  of  the  Court  was  deliv^ered  by 

Johnston,  J.  Had  the  limitation,  after  Mrs.  Adams'  life, 
been  to  a  stranger  instead  of  her  husband,  and,  upon  his 
death,  then  over  to  her  heirs,  it  would,  since  Tompldiis  vs. 
Rochelle,  1  Strob.  Eq.,  114,  Seabrook  vs.  Seabrook,  and  many 
other  cases,  scarcely  have  been  doubted  in  this  State,  that 
the  husband  must  come  in  among  those  entitled  to  succeed 
under  this  designation. 

Nor  is  it  doubtful,  under  Hicks  vs.  Pegues,  Buist  vs.  Dawes, 
4  Rich.  Eq,,  413,  and  other  cases,  to  the  same  effect,  that  a 
class  of  persons,  designated  to  take  as  heirs  of  a  given  indi- 
vidual, became  fixed  and  ascertained,  and  their  interests 
vested  at  the  death  of  that  individual;  so  that  if  they  should 
afterwards  die  before  the  time  assigned  for  their  enjoyment 
of  their  interests,  these  interests  would  be  transmitted  from 
themselves,  as  a  new  stock. 

The  conclusion  to  be  naturally  drawn  from  these  princi- 
ples, would  seem  to  be,  that,  under  this  deed,  the  husband, 
in  addition  to  the  provision  made  for  him,  as  survivor  of  his 
wife,  took  an  interest  along  with  her  distributees,  upon  her 
death  ;  an  interest,  which,  when  it  became  vested  in  him, 
became  of  value,  and  might  have  been  aliened,  either  along 
with  his  life  estate  or  separately. 


268  APPEALS  IN  EaUlTY. 

Glover  vs.  Adams. 

These  interests  were  cumulative. 

But  tiiough  these  positions  seenri  clear,  it  has  been  con- 
ceived that  to  allow  the  husband  to  take  as  heir  would  defeat 
the  intention  of  the  parties  to  the  deed.  The  intention  of 
parties  is  not  so  much  to  be  conjectured,  as  derived,  by  con- 
struction, from  their  words.  In  this  case,  it  has  been  argued 
that  it  was  not  intended  to  provide  for  the  husband  under 
the  description  of  heir,  because  he  was  provided  for  under 
another  designation.  But  it  will  hardly  do  to  blot  out  one 
express  provision,  because  there  is  another  express  provision. 
It  seems  to  be  going  too  far  to  make  the  husband's  exclusion 
or  inclusion  depend  upon  the  fact  tliat  provision  has  been 
made  for  him,  unless  we  can  be  certified  that  that  provision 
was  intended  to  exclude  all  further  provision  ;  and  how  can 
we  know  that,  in  the  face  of  express  words,  that  do  include 
him  ?  How  can  we  know,  in  the  absence  of  language  to 
inform  us,  that  the  words,  heirs  of  the  luife,  were  not  intended 
to  have  their  natural  meaning,  and  designate  heirs  living  at 
her  death, hut  those  living  at  her  husband's  death?  Do  they 
mean  the  one  or  the  other,  according  as  the  husband  is  or  is 
not  provided  for  ? 

I  should  draw  a  different  inference  as  to  the  intention  ;  an 
inference  that  heirs  at  her  death  were  contemplated,  from  the 
fact  that  the  deed,  on  its  face,  provides  an  alternative  which 
must  then  take  effect,  either  in  those  who  were  the)i  to  take 
from  the  wife  by  testament  or  by  intestacy. 

It  is  ordered,  that  the  decree  be  reformed  according  to  these 
views;  and  that  the  distribution  be  made  accordingly.  The 
provision,  in  the  decree,  as  to  costs,  to  remain  unaffected  by 
this  judgment. 

Wardlaw,  J.,  concurred. 

O'Neall,  C.  J.     I  concur  in  Chancellor  Dunkin's  decree. 

Decree  reformed. 


APPEALS  IN  EaUITY.  269 


Charleston,  January,  1&60. 


W.  C.  Smith  and  others  vs.  B.  F.  Hunt,  Executor  of   B, 
F.  Hunt,  and  others. 

Trusts    and    Trustees — Implied    Trust — Lapse    of    Time — 
Cotnmon  Fuud. 

II.  being  attorney  on  record  in  a  judgment,  of  which  he  owned  one-half,  pur- 
chased, at  sheriff's  sale,  a  tract  of  land,  sold  under  the  execution  on  the  jud^r- 
ment,  and  without  paying  the  purchase  money,  received  from  the  sheriff  a  deed 
of  conveyance  for  the  land: — //eZri,  that  H.  must  be  presumed  to  have  pur- 
chased as  trustee,  and  that  he  held  the  land  as  equitable  tenant  in  common  with 
the  other  owners  of  the  judgment. 

Lapse  of  time,  more  than  twenty  years,  held,  under  the  circumstances,  not  to 
rebut  the  pre^'umption  that  H.  had  purchased  as  trustee. 

The  land  having  been  sold  by  the  master  and  the  proceeds  being  in  Court,  AfW,  that 
the  other  owners  of  the  judgment,  who  had  another  demand  against  II.,  growing 
out  of  a  similar  transaction,  had  the  right,  as  against  other  creditors  of  H.,  lo 
look  to  the  proceeds  of  the  sale  as  a  common  fund  tor  payment  of  both  of  their 
demands. 

BEFORE  DARGAN,  CH.,  AT  CHARLESTON,  FEBRUARY,  1808. 

This  case  came  before  llie  Court  on  exceptions  to  the 
master's  report.     The  report  is  as  follows  : 

Under  a  special  order  made  hy  Chancellor  Dargan  in  this 
canse,  at  the  last  term  of  the  Court,  I  am  directed  to  examine 
and  "  report  as  to  whether  the  complainants  are  entitled  to 
any  portion  of  the  Crow  Island,  or  the  proceeds  of  sale,  either 
as  equitable  part  owners,  creditors  or  otherwise,  and  if  so,  to 
what  amount,  and  that  I  make  a  special  report  of  the  same, 
with  leave  to  report  any  special  matter  relating  thereto." 

In  pursuance  of  this  order,  I  have  investigated  the  matters 
thereby  submitted  to  me,  and  proceed  to  submit  the  conclu- 
sions at  which  I  have  arrived. 

The  land  in  question  must  formerly  have  been  the  prop- 
erty of  Nathan   Huggins,  a  resident  of  Georgetown   district. 


370  APPEALS  IN  EaUITY. 

Smith  vs.  Hunt. 

It  appears  to  have  been  levied  upon  as  his  property  by  the 
sheriff  of  that  district,  under  an  execution  issued  upon  a 
judgment  in  a  suit  instituted  in  the  name  of  William  S. 
Smith  and  Peter  Cuttino,  as  administrators  of  George  Smith, 
surviving  copartners  of  George  and  Savage  Smith,  against 
C.  Huggins,  executor  of  Nathan  Huggins. 

It  was  by  a  deed  bearing  date  the  second  day  of  December, 
1833,  conveyed  by  John  Harrelson,  sheriff  of  Georgetown 
district,  to  Benjamin  Faneul  Hunt,  for  the  sum  of  $3,200, 
as  stated  in  the  deed.  The  slieriff's  conveyance  recites  as 
the  authority  for  the  sale,  a  "  Fieri  Facias,  issued  out  of  the 
Court  of  Common  Pleas  held  for  the  District  of  Georgetown, 
tested  the  second  day  of  February,  in  the  year  of  our  Lord 
one  thousand  eight  hundred  and  thirty-two,  at  the  suit  of  W. 
S.  Smith  and  Peter  Cuttino,  administrators  of  George  Smith, 
who  survived  Savage  Smith  and  Cuttino,  partners  in  trade, 
under  the  firm  of  Smith  &  Cuttino,  commanding  that  of  the 
goods  and  chattels,  lands  and  tenements  of  Nathan  Huggins 
in  the  hands  of  Charles  Huggins,  his  executor,  to  levy  the 
sum  of  three  thousand  and  two  hundred  and  sixty-five  dollars 
debt  and  damages,  and  costs,  &c,"  This  deed  is  filled  up  in 
the  handwriting  of  Mr.  Hunt,  the  purchaser,  and  contains  in 
the  printed  form  the  usual  acknowledgment  of  the  receipt  of 
the  purchase  money,  and  is  endorsed  as  recorded  in  the  office 
of  the  Register  of  Mesne  Conveyance,  3d  December,  1833. 
It  is  also  endorsed  with  the  signature  and  seal  of  the  pur- 
chaser in  blank,  witnessed  by  Thomas  F.  Purse.  By  a 
transcript  from  the  record,  it  appears  that  the  purchaser,  Mr. 
Hunt,  was  the  plaintiff's  attorney  in  the  suit,  under  which 
the  execution  was  issued. 

The  complainants  first  insist,  that  this  purchase  was  made 
by  Mr.  Hunt  for  him  and  themselves,  as  the  persons  entitled 
to  the  joint  copartJiership  estate;  that  no  money  was  paid, 
but  that  it  was  to  be  held  on  joint  account,  and  that  therefore 
they  are    entitled    to   one-half  of  the  proceeds  of  the    sale, 


APPEALS  IN  EaUlTY.  271 

Charleston,  January,  1860. 

recently  made  by  me  under  the  order  ofthis  Court,  reserving 
the  equities  of  the  parties. 

No  testimony  of  any  agreement  or  arrangement  to  that 
effect  has  been  produced  before  me,  but  the  relations  of  the 
parties,  and  the  proceedings  in  the  cause  then  pending  in  this 
Court,  for  the  settlement  of  the  mutual  claims  between  Mr. 
Hunt  and  the  heirs  of  Savage  Smith,  are  relied  on  to  establish 
this.  The  purchase  for  joint  benefit  is  denied  in  the  answer 
of  B.  F.  Hunt,  executor  of  his  father,  (who  had  made  the 
purchase,)  and  he  insists  that  the  purchase  was  made  for 
himself  exclusively,  and  whatever  may  be  conjectured  as  to 
the  probable  intentions  of  the  parties  at  the  time,  there  is  not, 
it  seems  to  me,  suflicient  ground  now  to  presume  a  distinct 
contract  or  agreement  on  the  part  of  Mr.  Hunt  in  the  sense 
now  contended  for,  and  I  am,  therefore,  not  able  to  assent  to 
such  conclusion. 

The  complainants,  however,  insist  in  the  alternative,  if  the 
former  view  should  not  be  sustained,  that  as  the  purchase 
money  was  not  paid,  half  of  which  they  would  have  been 
entitled  to  receive,  they  are  clearly  entitled  to  the  same 
amount  Avith  interest  from  the  time  of  the  purchase,  to  be 
paid  out  of  the  proceeds  of  sale  now  in  my  hands,  and 
after  examining  the  matter,  I  have  come  to  that  conclusion. 

In  examining  the  claim  made  on  this  ground,  as  well  as  a 
further  claim  to  be  considered  hereafter,  it  is  necessary  to 
advert  somewhat  to  the  proceedings  prior  to  the  conveyance 
by  the  sheriff. 

Several  years  before  this,  C.  T.  Brown  and  wife  had  filed 
their  bill  in  this  Court  against  the  administrators  of  the  sur- 
viving copartner,  George  Smith,  and  the  complainants,  as  the 
distributees  of  the  deceased  copartner,  Savage  Smith,  praying 
a  partition  of  the  copartnership  estate,  and  setting  up  besides 
large  claims  (on  grounds  not  now  necessary  to  be  considered) 
against  the  co])artnership  estate.  In  this  cause  a  partition 
of  certain  lands  and  negroes  was  made  specifically  between 
the    distributees   of   the  two  copartners,  and  the  debts  and 


272  APPEALS  IN  EaUlTY. 

Smith  vs.  Hunt. 

choses  in  action  due  to  the  copartnership,  as  appears  by  the 
receipt  of  the  commissioner,  Mr.  Heriot,  dated  February  7th, 
1S52,  were  taken  out  of  the  hands  of  the  administrator,  and 
transferred  to  the  commissioner.  In  the  list  of  debts  thus 
transferred,  my  attention  has  been  called  to  one  from  Nathan 
Huggins,  which,  it  is  affirmed,  was  the  subject  of  the  suit 
under  which  the  sale  was  subsequently  made.  These  debts 
were,  by  a  report  in  the  cause  afterwards  made  by  Mr. 
Heriot,  recommended  to  be  placed  in  the  hands  of  an 
attorney  for  collection.  After  the  partition  in  1825,  C.  T. 
Brown  and  wife  sold  and  assigned  all  their  interest  in  the 
copartnership  estate  to  Mr.  Benjamin  F.  Hunt,  deceased, 
and  he  took  up  the  proceedings  which  had  been  previously 
commenced  in  the  name  of  Brown  and  wife,  and  afterwards, 
February  1st,  1833,  filed  a  bill  entitled  a  bill  of  supplement 
and  revivor,  in  substitution  for  bill  filed  in  1822,  setting  up 
the  claims  which  had  been  originally  set  up  by  C.  T.  Brown 
and  wife,  claiming  a  large  amount  over  and  above  a  moiety 
against  the  copartnership  estate;  praying  an  account  of  all 
these  claims  ;  and  praying,  besides,  that  a  suit  which  had 
been  commenced  against  him,  on  a  bond  given  by  him  for  a 
purchase  from  the  commissioner,  of  a  portion  of  the  copart- 
nership estate,  should  be  enjoined,  alleging  that  the  bond  was 
only  given  to  enable  the  commissioner  to  close  his  sales;  and 
that  when  the  account  should  be  taken,  it  would  appear  that 
he  was  entitled  to  a  much  larger  amount  from  the  copartner- 
ship estate. 

It  was  shortly  after  this  that  the  sale  of  the  sheriff  was 
made,  as  the  conveyance  bears  date  December,  1833.  The 
account  claimed  by  Mr.  Hunt  in  his  supplemental  bill,  would 
clearly,  I  think,  have  embraced  any  such  purchase  or  debt 
from  him.  He  could  not  ask  an  account  against  the  other 
persons  entitled  to  the  joint  estate  without  bringing  into  it  all 
that  he  had  himself  received  from  the  same  source,  and  these 
proceedings  have  been  regularly  continued  to  the  present 
cause,  in  which  an  order  was  made,  at  the  last  term,  reviving 


APPEALS  IN  EaUITY.  278 

Charleston,  January,  1860. 

all  the  former  proceedings  and  decretal   orders  not  already 
carried  out. 

It  is  admitted  by  the  answer  of  the  executor,  that  the  pur- 
chase money  expressed  in  the  deed,  was  never  paid  by  the 
testator,  on  the  ground,  as  it  is  alleged,  of  existing  claims, 
which,  if  established  in  his  favor,  would  have  superseded  the 
necessity  of  such  payment;  and  it  is  further  admitted  that 
the  testator  always  acknowledged  his  obligation  for  the  said 
purchase  money,  and  that  it  is  now  payable  out  of  the  pro- 
ceeds of  sale. 

But  it  has  been  contended  before  me,  upon  the  defences 
on  behalf  of  the  creditors  of  Mr.  Hunt,  that  this  claim  is 
barred  by  lapse  of  time  and  the  statute  of  limitations  ;  that 
it  was  so  before  the  death  of  the  purchaser,  and  that  a  claim 
thus  extinguished,  cannot  be  subsequently  revived  as  against 
creditors  by  the  admission  of  an  executor.  Whether  an 
executor  is,  in  all  cases,  bound  to  set  up  the  bar  of  the  statute 
against  a  claim  which  he  knows  not  to  have  been  paid,  but 
to  have  been  constantly  acknowledged  by  his  testator,  and 
whether  a  creditor  can  set  up  such  bar  against  such  acknowl- 
edgments, might  admit,  perhaps,  of  some  doubt.  Kut  I  do 
not  rest  my  conclusion  upon  this.  I  think  the  plaintiff's 
claim  cannot  be  defeated  by  the  statute,  for  two  reasons:  first, 
because  proceedings  have  been  constantly  pending  in  this 
Court  for  the  settlement  of  claims  within  which  it  is  em- 
braced; and,  secondly,  because  the  purchaser  was  himself  the 
attorney  of  the  commissioner  or  receiver  having  charge  of  the 
copartnership  estate.  If  another  person  had  been  the  pur- 
chaser, Mr.  Hunt,  as  the  attorney  for  the  plaintiffs  on  the 
record,  or  for  the  commissioner  to  whom  the  assets  had  been 
transferred,  would  have  been  entitled  to  receive  the  purchase 
money  from  the  sheriff;  but  being  himself  the  purchaser,  he 
may  be  considered  to  have  received  it  in  that  character;  and 
therefore  could  not  have  set  up  the  statute  of  limitations,  at 
least  while  proceedings  embracing  such  an  accountability 
were  pending.  If  the  purchase  money  had  been  paid  to  the 
lU 


274  APPEALS  IN  EaUITY. 

Smith  vs.  Hunt. 

commissioner  by  Mr,  Hunt,  or,  if  upon  non-payment,  the 
land  had  been  re-sold,  and  the  proceeds  so  paid  into  Court,  I 
think  there  can  be  no  doubt  that  the  complainants  would 
have  been  entitled  to  one  moiety  of  the  amount  that  Mr. 
Hunt  had  contracted  to  pay,  and  it  does  not  appear  that  this 
right  should  be  defeated  because  the  sale  has  only  been  lately 
made. 

I  therefore  report  as  my  conclusion,  that  the  complainants 
are  entitled  to  one-half  of  the  purchase  money  expressed  in 
the  conveyance,  with  interest  from  the  date  of  the  deed,  to  be 
paid  out  of  the  proceeds  of  sale  now  in  my  hands. 

Besides  this,  however,  the  complainants  contend  that  they 
are  entitled  to  have  the  residue  of  the  proceeds  of  Crow  Island 
applied  in  liquidation  of  the  amount  which  has  been  hereto- 
fore decreed  to  them,  on  account  of  the  purchase  by  Mr. 
Hunt  of  a  piece  of  land  called  Clegg's  Point,  which  was 
included  in  the  copartnership  or  joint  estate.  The  character 
of  this  demand  will  be  understood  by  reference  to  the  decree 
of  Chancellor  Dnnkin,  made  June,  1850,  by  which  it  is  recog- 
nized.    3  Rich.  Eq.,  522. 

It  appears  (Chancellor  Dunkin's  decree,  1S50)  that  the 
plantation  known  as  Clegg's  Point,  had  been  mortgaged  to 
secure  a  debt  due  to  the  copartnership  estate,  that  the  first 
purchaser  not  having  complied,  it  was  re-sold  by  the  commis- 
sioner under  the  order  of  this  Court,  for  the  benefit  of  the 
parties  entitled  to  the  copartnership  estate,  and  purchased  by 
Mr.  Hunt  for  the  sum  of  $8,010,  and  a  claim  for  a  portion  of 
this  amount  being  subsequently  established  in  favor  of  third 
parties,  Mr.  Hunt  was  declared  liable  for  the  difference 
between  such  claim  and  the  amount  of  his  bid,  to  one-half  of 
which  the  complainants  were  decreed  'to  be  entitled  to  be 
paid  by  Mr.  Hunt. 

The  complainants  insist  that  the  funds  recently  received 
from  the  proceeds  of  Crow  Island  are  to  be  considered  as 
precisely  of  the  same  character;  in  fact,  that  the  money  to 
be  made  in  the  execution  against  Nathan  Huggins  and  the 


APPEALS  IN  EaUITY.  275 

Charleston,  January,  1860. 

procepds  of  sale  of  Clegg's  Point,  are  portions  of  one  com- 
mon fund,  to  one  moiety  of  which  they  are  entitled;  and 
that  if  they  have  not  received  it  out  of  one  portion,  they  are 
entitled  to  receive  it  ont  of  the  other;  and  I  think  tliis  posi- 
tion correct.  If  both  amounts  liad  been  paid  into  Conn  as 
part  of  the  copartnership  assets,  tiiey  would  have  composed 
one  fund  divisible  in  moieties  between  the  complainants  and 
Mr.  Hunt,  or  his  estate;  if  only  one,  liowever,  had  been  so 
paid  in,  then  neither  party  would  have  been  allowed  to  take 
out  any  portion  until  he  had  been  charged  with  what  he  had 
already  received  out  of  the  same  or  an  equivalent  fund,  and 
a  debt  of  this  sort  for  a  purchase,  must  be  regarded  as  equi- 
valent to  a  receipt,  so  that  the  fund  now  in  the  Court,  from 
the  sale  of  Crow  Island,  must  be  paid  in  such  manner  as  to 
equalize  the  share  of  those  entitled  in  moieties. 

I  therefore  report,  lastly,  that  the  residue  of  the  proceeds  of 
sale  of  Crow  Island  now  in  my  hands,  after  providing  for 
the  claim  previously  made,  or  so  much  as  may  be  necessary, 
should  be  applied  in  liquidation  of  the  amount  decreed  to  be 
due  to  the  complainants  as  their  moiety  of  the  amount  due 
on  the  purchase  of  Clegg's  Point  by  Mr.  Hunt. 

The  complainants  excepted  to  so  much  of  the  report  of 
master  Tupper,  in  this  cause,  in  the  matter  of  the  rights  of 
the  parties  to  the  proceeds  of  Crow  Island,  as  concludes  that 
the  purchase  made  by  Banjamin  F.  Hunt,  deceased,  of  the 
tract  of  land  called  Crow  Island,  is  not  to  be  treated  as  made 
for  the  joint  benefit  of  himself  and  the  complainants,  so  as 
to  render  them  equitable  tenants  in  common,  according  to 
their  interests  in  the  copartnership  estate,  and  entitled  to  the 
proceeds  in  that  proportion. 

The  defendant,  Benjamin  F.  Hunt,  executor  of  B.  F.  Hunt, 
and  a  creditor,  excepts  to  the  report  as  follows: 

1.  Because  Crow  Island  never  was  copartnership  property, 
and  a  copartnership  interest  in  the  debt  of  Huggins,  in  pay- 


276  APPEALS  IN  EaUITY. 


Smith  vs.  Hunt. 


ment  of  which  it  was  sold,  could  not  affect  the  property  itself 
ill  the  hands  of  a  purchaser. 

2.  Because,  when  Col.  Hunt  jjurchased  Crow  Island,  he 
became  responsible  to  the  sheriff'  for  one-half  of  the  purchase 
money,  and  was  accountable  therefor,  as  a  personal  debt, 
while  Crow  Island  itself,  by  conveyance  from  the  sheriff', 
became  his  own  absolute  property,  and  subject  as  snch  to  all 
judgments  then  existing  against  him;  whereas  the  master,  in 
his  report,  would  displace  such  legal  liens  in  favor  of  parties 
who  could  only  charge  Col.  Hunt  with  one-half  of  what  he 
owed  to  the  sheriff,  as  one  item  of  an  unsettled  account. 

3.  Because  the  equitable  lien  that  is  now  claimed  by  the 
complainant,  and  sustained  by  the  report,  was  never  pretended 
to  until  a  comparatively  recent  period,  while  they  had  per- 
mitted Col.  Hunt  to  hold  the  property  as  his  own  unencum- 
bered estate  for  more  than  ten  years,  during  which  entire 
period  he  held  adversely  as  to  any  such  presumed  lien. 

4.  In  the  decree  as  to  Clegg's  Point,  the  liability  of  Col. 
Hunt  was  expresslj'  decided  to  be  merely  personal;  and  there 
is  no  reason  for  subjecting  the  Crow  Island  purchase  to  a 
different  rule  of  construction. 

5.  This  defendant,  as  executor  and  creditor,  concurs  in  all 
the  exceptions  filed  by  other  parties  to  the  said  report,  so  far 
as  they  are  consistent  with  his  answer  and  the  above  excep- 
tions. 

The  defendant,  Milberry  S.  Martin,  excepted  to  the  report, 
on  the  grounds  and  for  the  reasons  following  : 

It  is  submitted  tliat  the  master  is  in  error  in  supposing  the 
complainant  to  have  any  lien  or  priority  on  the  funds  derived 
from  the  late  sales  of  Crow  Island.     Because — 

1.  The  complainant  had  no  equity  arising  out  of  the  pro- 
ceedings referred  to  by  the  master,  for  those  proceedings 
originated  1st  February,  1833,  and  had  relation  to  the  state 
of  accounts  between  the  parties  at  that  time;  whereas,  the 
sale  to  Mr.  Hunt,  of  Crow  Island,  took   place  in   December 


APPEALS  IN  EaUITY.  277 

Charleston,  January,  1860. 

thereafter,  and  was  wliolly  independent  of  tlie  state  of  the 
account  existing  at  a  former  period. 

2.  The  sale  and  deed  of  conveyance  to  Mr.  Hunt,  by  the 
sheriff,  invested  Mr.  Hunt  with  an  absohite  title,  in  his  own 
right,  without  any  trust;  whereas,  the  master's  ruhng  has,  in 
effect,  declared  a  trust,  of  which  there  is  not  the  least  evi- 
dence in  fact. 

3.  Mr.  Hunt  not  complying  with  the  sale,  the  sheriffshould 
have  re-sold,  and  otherwise  proceeded  under  the  Vendue  Act 
of  1785.  Not  having  done  so,  the  complainants  should  have 
l>ursued  the  sheriff;  none  of  these  proceedings  having  taken 
place,  they  lost  all  claim  to  the  land,  and  consequently  to  the 
funds  arising  from  the  sale. 

4.  Mr.  Hunt  held  an  adverse  possession  for  over  twenty 
years  between  his  purchase  and  the  master's  sale;  this  period 
was  enough  to  render  any  equitable  demand  a  stale  claim, 
and  would  have  barred  a  legal  claim  to  the  land  twice  over, 

5.  That  the  claim,  if  any,  having  been  barred  by  the  stat- 
ute, and  by  lapse  of  time,  whilst  testator  lived,  the  executor 
could  not  revive  it  by  any  admission  on  his  part. 

6.  That  the  decree,  in  the  matter  of  Clegg's  Point,  made 
by  Chancellor  Dunkin,  .Tunc,  18.50,  was  a  mere  general  lien, 
and  did  not  entitle  complainants  to  any  priority  of  payment 
out  of  the  proceeds  of  Crow  Island. 

7.  That,  according  to  said  decree,  the  Clegg's  Point  trans- 
action constitnted  no  part  of  the  original  matters  of  contro- 
versy in  issne  between  the  parties,  and  consequently  is  not 
affected  by  any  of  the  equities  incident  to  them. 

8.  In  all  other  respects,  the  former  grounds  will  apply  to 
the  Clegg's  Point  transaction. 

Dargan,  Cn.  The  report  of  master  Tupper,  as  to  tlie  pro- 
ceeds of  Crow  Island,  in  this  cause,  with  the  exceptions  to 
the  same,  having  been  submitted  for  some  conclnsion,  by  the 
Court;  without  opportunity  for  argument  or  consideration,  it 
is,  with   a   view   to   the  ultimate  decision   of  the  questions 


278  APPEALS  IN  EaUITY. 

Smith  vs.  Hunt. 

involved,  ordered,  that  the  exceptions  severally  be  overruled, 
and  the  report  be  confirmed. 

The  complainants, and  tlie  defendants,  Mrs.  Martin  and  B. 
F.  Hnnt,  executor,  appealed  on  the  grounds  taken  in  their 
several  exceptions. 

Mitchell,  for  complainants. 

Northrop,  Simons,  Campbell,  IVhaley,  contra. 

The  opinion  of  the  Court  was  delivered  by 

O'Neall,  C.  J.  The  greatest  difficulty  experienced  in  this 
ancient  and  vexed  case,  has  arisen  more  from  the  accumula- 
tion of  documents  and  the  obscurity  of  facts,  than  from  any 
intrinsic  difficulty  in  the  questions  at  issue. 

1.  Crow's  Island.  It  appears  that  this  land  was  the  pro- 
perty of  Nathan  Huggins  (deceased).  It  was  sold,  as  such, 
under  a  fi.  fa.,  issued  upon  a  judgment  recovered  by  Wil- 
liam S.  Smith  and  Peter  Cuttino,  administrators  of  George 
Smith,  surviving  copartner  of  George  and  Savage  Smith, 
against  Charles  Huggins,  executor  of  Nathan  Huggins, 
deceased.  This  debt  was  part  of  the  assets  of  George  and 
Savage  Smith,  which  was  undivided, and  placed  in  the  hands 
of  Mr.  Heriot,  as  receiver.  Col.  Hunt  was  his  attorney  for 
the  collection  of  the  debt ;  and  also  his  agent  for  the  manage- 
ment of  tiie  undivided  partnership  assets.  He,  by  purchase 
from  Brown  and  wife,  the  only  child  of  George  Smith, 
deceased,  had  an  interest  of  one-half  in  the  debt ;  the  other 
parties,  the  children  of  Savage  Smith,  had  an  interest  in  the 
other  half.  The  land  (Crow's  Island)  was  sold,  and  pur- 
chased by  Col.  Hunt,  for  a  sum  very  nearly  the  whole  amount 
of  the  debt ;  the  deed  was  made  to  him  the  second  day  of 
December,  1833.  There  is  no  plea  of  the  statute  of  limita- 
tions. The  first  question  which  arises,  does  lapse  of  time, 
twenty  years,  raise  the  presumption  "  omnia  esse  rite  acta^^ 


APPEALS  IN  EaUITY.  279 

Charleston,  January,  1S60. 

and  therefore,  that  it  cannot  now  be  questioned,  that  the  pur- 
chase of  Col.  Hunt  was  in  his  own  interest,  and  not  as  trustee 
of  himself  and  the  other  parties  in  common  interest  with 
himself?  This  presumption,  it  must  be  remembered,  is  a 
presumption  of  fact,  and  not  an  irrcbuttible  presumption. 
Nor  is  it  like  the  statute  of  Hmitations,  which  is  a  statutory 
bar  to  the  remedy,  and,  in  general,  cannot  be  thrown  aside  by 
an  executor  where  the  remedy  is  barred  at  tlie  time  of  the 
death  of  the  testator. 

Keeping  these  distinctions  in  mind,  let  us  turn  to  this  case. 
How  is  Col.  Hunt  to  be  regarded  independent  of  the  lapse  of 
time?  He  bought  under  an  execution  obtained  by  him  as 
an  attorney,  and  also  as  an  agent  for  the  receiver,  in  the  col- 
lection of  a  debt  which,  in  equity,  belonged  to  him  and  the 
children  of  Savage  Smith.  Beyond  all  doubt,  he  was  at  the 
option  of  his  copartners  to  be  rated,  either  as  a  trustee,  in 
the  purchase,  or  accountable  for  the  purchase  money.  The 
master's  report  finds  the  fact  that  he  paid  the  purchase  money, 
by  the  use  of  the  debt,  but  declines  to  charge  him  as  trustee 
principally  because  no  express  trust  was  proved.  That  was 
not  necessary.  Equity  implies  such  a  trust,  from  two  circum- 
stances: the  relation  of  confidence,  which  he  occupied,  as 
attorney,  and  also  from  the  fact,  that  whatever  was  paid  for 
the  land  was  the  debt,  in  which  he  and  the  children  of  Savage 
Smith  had  an  interest  in  moieties.  These  facts  make  him  an 
impliod  trustee. 

Hut,  it  is  said,  these  are  mere  presumptions,  and  cannot 
now  be  sot  up  after  this  great  lapse  of  time.  There  are  two 
answers  to  this.  First,  that  the  settlement  between  Col.  Hunt 
and  the  children  of  Savage  Stnith,  of  the  partnership,  has 
been  the  subject  of  "  hot  litigation,"  as  is  said,  in  Smith  and 
Ilunf,  3  Rich.  ?>].,  465,  since  February,  18.32,  and  that  in  a 
case  so  situated,  the  presumption  cannot  arise,  and  in  con- 
nection with  this  it  may  be  remarked,  that  this  objection  does 
not  come  from  Col.  Hunt  himself,  who,  it  is  probable,  from 
statements  made  by  liis  executor,  and  hereafter  to  be  noticed, 


2(50  APPEALS  IN  EaUITY. 

Smith  v.1.  Hunt. 

would  never  have  resorted  to  lapse  of  time,  as  a  defence,  but 
it  is  interposed  by  persons  who  claim  to  be  creditors  of  Col. 
Hunt.  They  cannot  set  up  an  equity  superior  to  the  present 
claimants,  who  are  not  only  creditors  but  who  have  furnished 
the  very  means  of  acquiring  the  property.  But  the  second 
answer  is,  that  the  executor  states  "that  Crow  Island, formerly 
belonging  to  Nathan  Huggins,  against  whom  a  judgment 
had  been  recovered,  in  favor  of  the  said  copartnership,  for 
about  $3,265,  was  put  up  for  sale,  and  was  purchased,  as 
this  defendant  believes,  by  the  said  Benjamin  F.  Hunt,  to 
whom  a  deed  of  conveyance  was  made  and  delivered  :  and 
this  defendant  believes  it  to  be  true,  that  the  purchase  money 
was  not  made,  and  that  payment  was  refused  U)itil  a  final 
settlement  of  the  accounts  between  the  said  Benjamin  F.  Hunt 
and  the  other  parties  concerned  could  be  made,  respecting 
which,  there  was  much  controversy  up  to  the  time  of  his 
decease."  This  admission  certainly  ends  all  pretence  of  lapse 
of  time,  as  a  bar,  if  the  executor's  admission  can  be  allowed 
to  liave  any  weight  in  a  case  like  this.  He  is  both  executor 
and  creditor,  and  as  to  him  and  his  rights  it  must  have  effect. 
So,  too,  I  think  it  must  govern  the  case  as  to  all  other  parties. 
For  it  is  not  like  the  statute  of  limitations,  which  as  a  statu- 
tory bar,  he  might  not  be  at  liberty  to  waive.  But  lapse  of 
time  is  a  mere  presumption  in  fact,  which  may  be  rebutted, 
and  the  executor's  admission  is  a  statement  of  fact,  which 
completely  destroys  the  presumption.  I  am,  therefore,  satis- 
fied that  the  deceased  Col.  Hunt  must  be  regarded  as  a  trustee 
for  himself  and  his  copartners  in  the  purchase  of  Crow  Is- 
land, and  that,  of  course,  he  and  they  are  entitled  to  moieties 
of  the  proceeds. 

2.  So,  too,  as  to  Clegg's  Point.  I  concur  in  the  view  of 
the  master,  that  the  proceeds  of  sale  in  that  respect  are  a  com- 
mon fund  with  the  proceeds  of  Crow  Island,  and  that  the 
complainants  are  entitled  to  moieties  of  both,  and  that  Col. 
Hunt,  or  his  estate,  is  entitled  to  the  other  moieties.    Of  course. 


APPEALS  IN  EaUITY.  281 

Charleston,  January,  1860. 

if  Hunt  has  received  any  part, or  parts,  that  must  be  cledtictcd 
from  his  moieties,  so  that  he  shall  receive  that  much  less, 
and  thus  equality  be  produced.  The  circuit  decree  and  the 
master's  report  are  modified  according  to  these  views,  and  the 
master  is  directed  to  pay  out  the  fund  accordingly. 

Johnston  and  Wardlaw,  JJ.,  concurred. 

Decree  modified. 


282  APPEALS  IN  EaUITY. 


Sessions  vs.  Stevenson. 


The  Administrators  of  J.  T.  Sessions  vs.  Samuel  M. 
Stevenson  and  others. 

Presumptioti    of  Payment  —  Judgment  —  Levy  —  Sovereign 

State. 

Levy,  under  execution,  on  a  house  and  lot,  with  other  circumstances  ;  held  suf- 
ficient, after  a  lapse  of  near  twenty  years,  to  raise  the  presumption  that  the 
judgment  was  satisfied. 

A  sovereign  State,  coming  in  as  a  creditor,  under  a  bill  to  marshal  assets,  stands 
as  other  creditors,  and  is  liable  to  the  ordinary  presumptions  of  payment. 

BEFORE  JOHNSTON,  CH.,  AT  HORRY,  FEBRLTARY,  1859. 

This  case  will  be  sufficiently  understood  from  the  opinion 
delivered  in  the  Court  of  Appeals. 

Connor,  for  appellant.  The  defendants  rely  on  the  pre- 
sumption of  payment.  Less  than  twenty  years  has  elapsed, 
and  the  deficiency  in  time  must  be  aided  by  other  circum- 
stances in  order  to  raise  the  presumption.  Butler  vs.  fVight- 
ynan,  2  Speer,  359;  Williams  vs.  Clinton  and  Sims,  1  Rich. 
Eq.,  53.  The  levy  and  laches  are  relied  on.  The  levy  being 
on  real  estate  is  not  prima  facie  satisfaction,  Clerk  vs.  With- 
ers, 1  Salk.,  322.  Neither  can  laches  be  relied  on  to  aid  the 
deficiency  of  time.  The  maxim  nullum  tempus  accurrit  regi 
rests  not  so  much  on  prerogative  as  on  grounds  of  public 
policy,  and  the  crown  or  government  cannot  be  prejudiced  by 
lapse  of  time  or  the  laches  of  its  officers.  Co.  Litt.,  70,  b,  119,  a, 
note  1;  LegatVs  case,  10  Coke  Rep.,  Ill,  114;  Com.  Dig. 
Prerogative,  D.,  86  ;  Regina  vs.  Fenton,  per  Pollock,  C.  B.,  2 
Excheq.,  220  ;    United  States  vs.  Knight,  14  Pet.,  315. 

Harllee,  contra. 


APPEALS  IN  EaUITY.  283 

Charleston,  January,  IS60. 

The  ()[iinion  of  the  Court  was  delivered  by 

Wardlaw,  J.  In  a  suit  pending  in  the  Court  of  Equity, 
for  Horry  district,  to  marshal  the  assets  of  Josias  T.  Sessions, 
the  creditors  were  regularly  called  in,  the  amount  of  debts 
ascertained  were  paid,  and  at  February  Term,  1853,  a  balance 
remained  in  the  hands  of  the  commissioner  for  distribution 
among  the  heirs  of  said  J.  T.  Sessions.  At  February  Term, 
1855,  the  United  States,  through  the  post-master-general, 
interposed  a  claim  founded  on  a  judgment  against  said  Ses- 
sions, obtained  in  July,  1836,  and  at  February  Term,  1859, 
the  commissioner  reported  in  favor  of  this  claim.  The 
administrators  excepted  to  this  report  on  the  ground  that  the 
circumstances  in  evidence  warranted  the  presumption  of  the 
satisfaction  of  the  judgment ;  and  the  Chancellor  sustained 
the  exception.  The  circumstances  relied  upon  in  aid  of  lapse 
of  time  are,  that  ihefi.fa.  for  execution  of  the  judgment  was 
levied  on  the  house  and  lot  of  Sessions  by  the  deputy  mar- 
shal, March  10,1837:  that  J.  T.  Sessions,  in  April,  1838, 
(after  payiug  $40  to  the  marshal  in  February,  1838,)  sent  off 
two  negroes  to  be  sold,  to  raise  money  for  the  payment  of  a 
debt  in  Charleston — probably  that  in  question:  and  that  Ses- 
sions afterwards  was  apparently  solvent,  and  was  undisturbed 
by  the  pursuit  of  this  claim.  It  is  true,  as  asserted  in  the 
first  ground  of  appeal,  that  not  quite  twenty  years  had  elapsed 
from  the  rendition  of  the  judgment  before  the  presentment  of 
this  claim.  And  it  docs  not  appear  that  the  estate  of  Sessions 
has  been  actually  distributed.  Yet  it  is  clearly  settled  by  our 
cases,  that  the  presumjition  of  satisfaction  of  a  debt  of  record 
may  be  legitimately  deduced  within  less  than  twenty  years, 
where  there  is  considerable  lapse  of  time,  with  corroborating 
circumstances. 

The  presumption  of  satisfaction  prima  facie  arising  from 
the  levy,  the  disposition  of  which  is  not  accounted  for,  is 
supposed,  in  the  second  ground  of  appeal,  to  be  rebutted  by 
the  partial  payment  afterwards  to  the  marshal,  followed  by 
llie  delivery  of  his  negroes  by  defendant  in  execution  to  an 


284  APPEALS  IN  EQUITY. 

Sessions  vs.  Stevenson. 

agent,  to  sell,  and  from  the  proceeds  of  sale  to  pay  this  debt. 
It  seems  to  us,  that  if  the  plaintiff  in  execution  did  not 
receive  the  proceeds  of  the  negroes,  this  furnishes  no  reason 
for  not  proceeding  on  the  levy.  If  the  plaintiff  did  receive 
the  proceeds,  the  whole  sequence  of  things  is  natural. 

In  the  third  ground  of  appeal,  it  is  asserted  that  no  laches 
can  be  imputed  to  the  petitioners.  The  argument  is,  that  the 
United  States  is  the  petitioner,  and  that  that  government  as 
sovereign,  is  entitled  to  the  benefit  of  the  maxim,  nullum 
tempus  occiirrit  regi :  applicable  to  all  sovereigns  deriving 
their  institutions  from  the  common  law. 

Individually,  I  dispute  the  sovereignty  of  the  United 
States,  and  consider  it  as  a  mere  agency  of  sovereign  States  ; 
and,  especially,  I  deny  that  the  rights  of  a  sovereign  pertain 
to  one  of  the  officers  or  departments  of  the  government.  But 
it  is  enough  for  the  occasion  to  say,  that  when  a  sovereign 
State  interposes  as  a  mere  creditor  in  a  bill  for  marshalling 
assets,  in  the  absence  of  statutory  or  positive  regulations,  it 
stands  on  the  same  footing  as  any  other  creditor. 

Under  all  the  circumstances  of  the  case,  we  approve  the 
conclusion  of  the  Chancellor:  to  which  in  this  tribunal  we 
feel  bound  to  give  all  the  efficacy  of  a  verdict. 

Ordered,  that  the  appeal  be  dismissed. 

O'Neall,  C.  J.,  and  Johnston,  J.,  concurred. 
Jippeal  dismissed. 


APPEALS  IN  EaUITY.  285 


Cliarleslon,  January,  1S60. 


John  N.  Maffitt  vs.  John  H.  Read. 
Evidence — Settlement — Account. 

Bill  by  a  cestny  qiietrn.it  against  trustee,  for  account,  dismissed,  certain  dealings 
between  the  parties  being  held  sufficient  evidence  of  a  final  settlement  be- 
tween them. 

BEFORE  DUNKIN,  CH.,  AT  CHARLESTON,  JUNE,  1859. 

DuNKiN,  Ch.  About  12th  May,  1S42,  the  late  James 
Withers  Read  intermarried  with  CaroHiie  Laurens,  who  was 
at  that  time  about  eighteen  or  nineteen  years  of  age.  In 
contemplation  of  the  marriage,  the  fortune  of  the  lady,  con- 
sisting chiefly,  though  not  entirely,  of  personalty,  was 
conveyed  and  transferred  to  Edward  R.  Laurens  and  the 
defendant,  in  trust  for  the  uses  therein  and  thereby  declared. 
The  estate  thus  settled,  was  composed  of  a  moiety  of  some 
eight  slaves,  and  certain  articles  of  plate,  held  by  her  brother 
and  herself,  and  which  constitute  no  part  of  the  enquiry  to 
be  made;  and  also  of  her  moiety  of  certain  bonds  and  stocks, 
of  a  lot  in  Hasel  street,  and  her  interest  (being  a  sixteenth) 
in  certain  marsh  lands.  Her  moiety  of  the  stock  and 
bonds  (as  afterwards  ascertained  on  partition)  amounted  to 
(^41,079  66)  forty-one  thousand  and  seventy-nine  66-100 
dollars,  and  her  interest  in  the  realty  was  afterwards  sold  for 
($2,962  50)  two  thousand  nine  hundred  and  sixty-two  50-100 
dollars,  or  in  the  aggregate  forty-four  thousand  and  forty-two 
dollars  sixteen  cents  ($44,042  16.)  The  uses  declared  were, 
among  others,  for  the  joint  use  of  husband  and  wife,  during 
coverture,  and  in  the  event  of  the  survivorship  of  the  wife, 
with  or  without  issue,  then  to  her  absolutely,  discharged  of 
all  other  and  further  trusts.     It  was  also  provided,  that  in 


286  APPEALS  IN  EaUlTY. 

Maffitt  vs.  Read. 

the  event  that  the  said  Caroline  Laurens  and  James  W.  Read 
should,  at  any  time  during  their  joint  lives,  &c.,  think  it 
beneficial  to  their  interest  to  have  the  estate,  or  any  part 
thereof,  sold,  disposed  of,  invested  in,  or  exchanged  for  other 
property,  real  or  personal,  and  the  purchase  money  invested 
in  any  other  property  whatsoever,  or  placed  at  interest,  that 
then  the  said  trustees,  on  being  thereunto  requested  in  writ- 
ing by  the  said  Caroline  and  James,  shall  dispose  of,  convej'', 
invest  or  exchange  the  same,  or  any  part  thereof,  as  the  case 
may  be,  without  any  right  of  refusal  on  the  part  of  such 
trustees,  and  invest  the  purchase  money  in  such  other  prop- 
erty, real  or  personal,  or  invest  or  place  it  at  interest,  as  may 
be  required  by  them,  the  said  Caroline  and  James,  &c.,  and 
such  purchased  property  or  invested  funds,  &c.,  shall  stand 
subject  to  the  same  uses,  &c. 

For  about  four  years  after  the  marriage,  and  until  5th 
March,  1846,  the  corpus  of  the  estate  remained  substantially 
in  the  same  condition,  the  interest,  dividends,  or  use  being 
enjoyed  by  the  parties  according  to  the  terms  of  the  settle- 
ment. On  the  day  last-mentioned,  the  trustees,  at  the 
instance  and  by  the  request  of  the  cestuy  que  trust,  pur- 
chased one  moiety  of  the  Rice  Hope  plantation  on  Cooper 
river,  and  of  the  slaves  thereon,  for  the  sum  of  forty-one 
thousand  seven  hundred  and  sixty  37-100  dollars  ($41,760 
37,)  to  wit:  $20,000  for  the  plantation,  and  $21,760  37  for 
the  slaves,  and  to  secure  the  payment  of  the  same,  the  trustees 
executed  their  bond  to  the  vendor,  J,  Harleston  Read,  the 
elder.  Subsequently,  the  trustees  added  to  the  gang  two 
negroes,  purchased  for  thirteen  liundred  and  sixteen  dollars, 
making  the  agricultural  investment  forty-three  thousand  and 
seventy-six  37-100  dollars  ($43,076  37). 

James  Withers  Read  and  his  wife  entered  into  possession 
of  the  premises,  and  continued  in  the  use  and  enjoyment  of 
the  same  until  the  death  of  the  former,  which  took  place  28th 
June,  1851.  In  fulfilment  of  the  terms  of  the  marriage  set- 
tlement, in  such   contingency  declared,  the  trustees,  on  the 


APPEALS  IN  EaUITY.  287 

Cliarleslon.  January,  1860. 

12th  August,  1S51,  conveyed  and  transferred  to  Mrs.  Read 
the  moiety  of  Rice  Hope  plantation  and  the  slaves,  which 
had  been  purchased  for  the  trust  estate.  On  1st  January, 
1852,  Mrs.  Read  conveyed  her  moiety  of  the  plantation  to  J. 
Harleston  Read,  Sr.,  for  the  sum  of  twenty-thousand  dollars, 
and  executed  to  him  a  bill  of  sale  for  her  moiety  of  the 
slaves  for  tlie  consideration  of  twenty-four  thousand  dollars — 
making  an  aggregate  of  forty-four  thousand  dollars  ($44,000). 
But  in  adjusting  the  payment  with  J.  Harleston  Read,  Sr., 
the  balance  due  on  the  bond  of  the  trustees  for  the  original 
purchase  money  (being  upwards  of  seven  thousand  dollars) 
was  deducted  and  allowed.  Early  in  August,  1S52,  the 
plaintiff  intermarried  with  the  widow  of  James  Withers 
Read,  deceased.  These  proceedings  were  instituted,  on 
behalf  of  the  plaintiff  and  his  wife,  on  8th  May,  1854. 

The  scope  and  object  of  the  bill  is  not  to  charge  the  trus- 
tees, or  either  of  them,  for  any  sums  by  them,  or  either  of 
ihcm,  actually  received  and  misapplied,  but  to  render  them 
responsible  for  permitting  the  late  James  Withers  Read  to 
receive  certain  funds  belonging  to  the  trust  estate,  which 
were  either  wasted  by  him,  or  not  properly  re-invested,  or  in 
any  other  manner  applied  to  the  purposes  of  the  trust.  After 
the  answers  had  been  filed,  an  order  of  reference  was  taken, 
without  prejudice  to  the  defence  set  up  by  the  defendant,  and 
the  bill  was  dismissed  as  to  the  defendant  E.  R.  Laurens,  by 
consent  of  plaintiff  and  the  codefendant,  J.  H.  Read,  and 
without  prejudice  to  the  plaintifPs  right  of  account  other- 
wise. The  report  of  the  master  had  been  filed,  when,  in 
March,  1859,  the  wife  of  the  plaintiff  departed  this  life,  and 
on  14th  May,  1859,  the  proceedings  were  revived  by  the 
plaintiff  in  his  own  right,  and  as  administrator  of  his  deceased 
wife. 

Preliminary  to  the  consideration  of  the  exceptions  to  the 
master's  report,  it  may  be  well  to  notice  the  answer  of  the 
defendant,  John  Harleston  Read,  as  the  order  of  reference  was 
made  subject  to  the  defence  therein  disclosed.     This  defend- 


388  APPEALS  IN  EaUlTY. 

Maffiit  vs.  Read. 

ant  does  not  shrink  from  the  responsibility  which,  according 
to  the  principles  of  this  Court,  he  incurred  in  becoming  a 
party  to  the  marriage  settlement.  For  the  consequences  of 
any  misplaced  confidence  in  his  deceased  brother,  he  admits 
his  liability,  but  tlie  defendant  contends,  that  by  far  the 
greater  part  of  tiie  trust  fund  received  by  the  said  James  W. 
Read,  and  to  which  he  may  not  have  been  entitled  as  the 
usufruct  of  the  estate,  was  re-invested  by  him  with  the  full 
knowledge  and  consent  of  his  wife,  for  the  use  and  as  part  of 
the  trust  estate;  that  such  investments  were  not  only  with 
her  approbation  at  the  time,  but  received  her  further  and 
confirmed  sanction  when  she  afterwards  became  his  widow, 
and  entitled  absolutely  to  the  estate.  The  defendant  admits 
that  a  portion  of  the  fund  received  by  the  said  James  W. 
Read  was  not  thus  re-invested;  but  that  about  two  months 
before  the  death  of  the  said  James  W.  Read,  an  adjustment 
was  made  of  this  deficiency,  ascertained  in  the  presence  of 
his  wife  and  of  his  solicitor;  that  for  this  amount  the  said 
James  W.  Read,  then  and  there,  confessed  a  judgment  to  his 
said  trustees  (who  were  not  aware  of  the  transaction  nntil 
some  time  afterwards).  That  more  than  twelve  months  after 
the  death  of  the  said  James  W.  Read,  to  wit :  on  15th  July, 
1852,  the  defendant,  who  had  become  administrator  of  his 
deceased  brother,  settled  the  said  judgment,  then  amounting 
to  about  ($2,200)  two  thousand  two  hundrei  dollars,  by 
executing  to  her  his  own  individual  bond  for  the  payment  of 
the  same;  and  that  the  said  bond  was  subsequently  paid  in 
full  to  the  plaintiff,  John  N.  MafFitt,  after  his  intermarriage 
with  the  widow  of  the  said  James  W.  Read,  deceased  ;  that 
all  this  took  place  some  time  prior  to  the  institution  of  these 
proceedings,  and  the  defendant  insists  on  the  same  as  a  final 
settlement  of  any  defalcation  of  the  said  James  W.  Read,  in 
relation  to  the  trust  estate. 

In  order  to  appreciate  a  part  of  this  defence,  it  is  necessary 
to  advert  to  some  of  the  provisions  of  the  settlement.  It  is 
therein  declared  to  be  the  duty  of  the  trustees,  upon  the  re- 


APPEALS  IN  EaUITY.  281> 

Charleston,  January,  1860. 

quest,  in  writing,  of  the  cestiiis  que  trust,  to  dispose,  &c.,  of 
any  part  of  the  trust  estate,  and  re-invest  in  such  other  prop- 
erty as  niay  he  required  of  them,  "  without  any  right  of 
refusal  on  the  part  of  the  said  trustees."  It  will  be  perceived 
that  the  right  of  control  and  direction,  as  to  the  mode  and 
manner  of  investment,  was  in  the  cestuis  que  trust  absolute 
and  unlimited.  It  was  only  necessary  that  the  request  or 
requisition  of  these  latter  should  be  distinctly  signified.  It 
was  probably  for  the  protection  of  the  trustees,  or  of  a  pur- 
chaser, that  it  was  required  to  be  in  writing.  Their  assent  or 
desire  might  be  otherwise  established,  as  by  their  acceptance 
and  use  of  the  property  taken  in  exchange  or  as  a  re-invest- 
ment. This  is  illustrated  by  the  purchase  of  Rice  Hope  and 
the  slaves,  in  March,  1846,  and  the  sales  of  stocks,  &c.,  to 
meet  the  payments.  No  evidence  appears  of  any  request  in 
writing,  on  the  part  of  the  cestuis  que  trust,  but  they  took 
possession  of  the  estate  and  enjoyed  the  same  in  common 
during  the  coverture.  After  the  death  of  James  W.  Read, 
the  plantation  and  slaves  were,  in  pursuance  of  the  provis- 
ions of  the  settlement,  on  12th  August,  1S51,  conveyed  by 
the  trustees  to  the  survivor,  Mrs.  Read,  by  whom  they  were 
subsequently  (1st  January,  1852)  conveyed  to  another  pur- 
chaser for  valuable  consideration.  After  this,  it  would  not 
have  been  competent  for  Mrs.  Read,  or  her  representative,  to 
have  impugned  the  investment  in  Rice  Hope,  for  the  want  of 
evidence  of  a  written  request  on  the  part  of  her  deceased 
husband  and  herself,  nor  is  the  same,  in  any  manner,  now 
called  in  question  or  impugned.  So,  in  regard  to  the  sale  of 
the  marsh  lots,  and  also  of  the  investment  in  the  Morris 
island  lot,  there  is  no  evidence  of  any  written  request  on  the 
part  of  James  W.  Read  and  wife,  but  the  master  has  cor)- 
cluded  from  the  circumstances  detailed  in  his  report,  that 
these  transactions  were  at  the  instance  and  by  request  of  the 
parties,  or  received  their  subsequent  sanction  ;  and  he  has 
accordingly  sustained  the  same,  without  objection  to  his 
judgment.  It  would  scarcely  be  competent  for  the  cestuis  que 
20 


290  APPEALS  IN  EaUITY. 

Maffitt  vs.  Read. 

trust,  accepting  the  property  purchased  as  a  re-investment, 
afterwards  to  repudiate  it  as  such,  as  between  themselves  and 
the  trustees,  because  there  was  no  evidence  of  a  written 
request. 

Nor  can  it  any  more  be  properly  objected  to  a  re-invest- 
ment, that  it  was  not  of  a  character  which  this  Court  would 
have  selected,  or  which  a  prudent  trustee  ought  to  have 
sanctioned.  The  terms  of  the  marriage  settlement  expressly 
defined  the  authority  of  the  trustees  in  this  respect.  They 
were  required  to  pursue  implicitly  the  requisitions  of  the 
cestuis  que  trust,  who  were  thereby  constituted  the  sole  judges 
of  the  expediency,  as  well  as  the  mode  of  re-investment, 
"  without  any  right  of  refusal,  on  the  part  of  the  trustees." 

Duriiig  the  five  years  which  elapsed  between  the  purchase 
of  Rice  Hope,  and  the  death  of  James  W.  Read,  in  June, 
1851,  agricultural  investments  on  Cooper  river  proved  entirely 
unprofitable.  For  four,  out  of  the  five  years,  there  was  a  failure 
of  crops,  in  consequence  of  the  condition  of  the  river.  Within 
this  period,  James  W.  Read  had  put  valuable  improvements 
on  the  trust  estate,  and  he  had  also  improved  and  furnished 
the  liouse  on  Morris  island,  which  was  their  summer  resi- 
dence. For  none  of  these  have  any  allowance  been  made, 
and  for  the  reasons  stated  in  the  master's  report,  upon  which 
it  is  not  proposed,  at  this  time,  to  make  further  observation. 
In  his  answer,  the  defendant  states  that  his  intestate,  James 
W.  Read,  died  insolvent,  and,  at  the  hearing,  records  of 
unsatisfied  judgments  to  a  large  amount,  existing  against  him 
at  the  time  of  his  death,  were  adduced  in  evidence. 

Upon  the  death  of  her  husband,  Mrs.  Read,  as  survivor, 
became  entitled  absolutely  (as  already  stated)  to  the  whole  of 
the  trust  estate,  consisting  as  well  of  tlie  original  investment 
as  of  any  re-investments.  In  this  way  she  took  and  con- 
veyed to  a  subsequent  purchaser,  the  moiety  of  Rice  Hope 
and  the  slaves  for  forty-four  thousand  dollars  ;  and  to  the 
same  purchaser,  she  conveyed  for  valuable  consideration  her 
moiety  of  the  stock,  plantation,  horses,  &c.     In  addition   to 


APPEALS  IN  EQUITY.  25)1 

Charleston,  January,  ISGO. 

these,  Mrs.  Read,  (as  proved  by  the  testimony  of  N.  H. 
Gnyton,  for  many  years  manager  on  the  place,)  claimed  and 
took  possession  of  many  other  vahiable  articles  of  property. 
A  large  portion  of  these  she  SMbscqupiitly  sold  or  otherwise 
disposed  of.  A  paper  was  prodnccd  (marked  D)  which  the 
witness  proved  to  he  in  the  handwriting  of  Mrs.  Read.  This 
purports  to  be  a  list  of  stock,  tools,  &c.,  on  Rice  Hope,  and  at 
the  latter  part,  the  names  of  various  horses  are  given,  with 
this  caption:  "Horses  bought  by  J.  Withers  Read  for  the 
use  of  his  wife  and  self."  All  the  horses  thus  designated 
were  taken  and  disposed  of  by  Mrs.  Read.  There  was  also 
(he  slave  Clarinda  ;  she  had  been  purchased  by  James  W. 
Read  for  three  hundred  and  ten  dollars  ;  she  was  a  cook,  and 
not  a  field  negro.  When  Mrs.  Read  came  to  town,  after  the 
death  of  her  husband,  she  brought  Clarinda  with  her,  and 
hired  her  out,  as  a  cook,  in  Charleston,  where  she  died  the 
early  part  of  the  following  year.  It  was  satisfactorily  estab- 
lished, that  for  the  various  articles  of  property  thus  taken  by 
Mrs.  Read,  her  husband,  James  W.  Read,  had  paid  upwards 
of  three  thousand  dollars.  In  addition  to  this,  she  had  also 
a  i)romissory  note  of  James  Smith  Col  burn  to  James  W.  Read, 
for  five  hundred  dollars,  which  was  subsequently  collected  by 
the  plaintiff  in  this  cause.  It  further  appeared  that  on  19(li 
April,  1851,  about  two  months  prior  to  the  death  of  James  W. 
Read,  he,  of  his  own  accord,  confessed  a  judgment  to  his 
trtistees  for  the  sum  of  two  thousand  and  twenty-nine  G3-100 
dollars  (^2,029  63).  In  the  defendant's  answer  it  is  staled, 
(and  as  the  Court  understood,  was  so  conceded,)  that  "this 
confession  of  judgment  was  executed  in  the  country  before 
his  (J.  W.  Read's)  own  solicitor,  and  in  the  presence  of  his 
wife,  and  with  her  full  knowledge."  Further,  it  is  stated 
that  "this  confession  was  arranged  by  the  said  James  W. 
Read  and  his  wife,  the  said  Caroline,"  &c.  Taking  into  com- 
putation the  original  price  paid  by  James  W.  Read  fitr  the 
articles  of  property  above  referred  to,  and  thus  claimed  and 
received  by  Mrs.  Read  after  his  death,  the  amount  for  wliich 


292  APPEALS  IN  EaUITY. 

Maffitt  vs.  Read. 

the  judgment  was  thus  confessed  rather  exceeds  the  balance 
of  the  trust  funds,  for  which  the  master  regarded  the  said 
James  W.  Read  as  at  that  time  chargeable.  The  intestate,  in 
his  actual  situation,  had  no  conceivable  motive  to  diminish 
the  amount  for  which  he  was  about  to  give  a  security  to  his 
trust  estate.  The  various  articles  of  property  in  which  re- 
investment had  been  made  were  before  him.  It  must  have 
been  as  well  known  both  to  his  wife  and  himself,  to  which  of 
them  the  trust  character  attached,  and  the  deficiency  of  the 
trust  fund,  for  which  he  was,  therefore,  accountable.  In  con- 
firmation of  this  view,  Mrs.  Read,  after  the  death  of  her  hus- 
band, (as  the  master  reports,)  rented  out  the  Morris  island 
property,  and  subsequently  conveyed  the  same  to  a  purchaser, 
from  whom  she  received  the  proceeds.  She  also  held  posses- 
sion of  Clarinda,  whom  she  carried  with  her  to  Charleston, 
and  there  hired  her  out;  and  this  slave  afterwards  died  while 
in  her  employment,  or  under  her  control.  Several  other  of 
these  articles  she  afterwards  sold  or  disposed  of,  and  among 
them,  of  the  carriage,  horses,  &c.,  which  she  had  designated, 
in  the  list  given  to  the  manager,  as  having  been  purchased  ''  by 
J.  Withers  Read  for  the  use  of  his  wife  and  self"  Further- 
more, the  present  plaintiff  in  her  right,  demanded  payment 
of  the  promissory  note  given  by  James  Smith  Colburn,  and 
subsequently  received  satisfaction  of  the  same  from  him. 
Unless  Mrs.  Read,  as  the  survivor,  had  been  entitled,  under 
the  terms  of  the  settlement,  to  these  several  articles  of  prop- 
erty, she  had  no  authority  to  receive,  dispose  of,  or  appro- 
priate the  same,  nor  had  the  legal  representative  of  the  intes- 
tate's estate  any  excuse  for  permitting  it  to  be  done. 

But,  on  the  death  of  her  husband,  Mrs.  Read  had  the  right 
to  demand  of  the  trustees  an  account  of  any  portion  of  the 
corpus  of  the  trust  estate,  which  her  husband  had  been  per- 
mitted to  receive,  and  which  he  had  failed  properly  to  re-in- 
vest or  appropriate;  and  the  trustees  had  a  correspondent 
right  to  account  from  the  estate  of  the  intestate.  With  a  full 
knowledge  of  this,  and  knowing,  too,  the  circumstances  under 


APPEALS  IN  EaUITY.  '293 


Charleston,  January,  ISfiO. 


which  the  confession  of  judgment  was  given,  and  tlie  pur- 
poses for  which  it  was  given,  Mrs.  Read,  more  than  twelve 
montlis  after  the  decease  of  her  husband,  to  wit:  on  15th 
July,  1852,  received  from  the  defendant,  J.  Harleston  Read, 
his  own  bond  for  the  full  amount  of  the  said  judgment  and 
interest.  The  caption  of  the  receipt  run  as  follows:  "  Mrs. 
James  Withers  Read,  in  account  with  J.  Harleston  Read,  Jr., 
trustee;"  and  after  charging  the  amount  of  the  judgment 
and  interest,  and  crediting  an  account  paid  or  allowed  to  the 
solicitor,  "Received,  Charleston,  July  15th,  1852,  from  J. 
Harleston  Read,  one  hundred  and  eleven  25-100  dollars,  in 
full  for  balance  of  interest  of  the  above-mentioned  judgment, 
also  his  for  $2,029  63,  in  full  of  the  principal  of  the 

same,  as  per  statement  above."  Signed,  "  Caroline  L.  Read." 
The  defendant,  in  his  answer,  says  that  "at  the  time  of  giv- 
ing his  bond,  this  defendant  was  under  the  most  certain  con- 
viction that  he  was  making  a  full  and  entire  settlement  of 
his  trust  with  the  complainant,  and  nothing  was  intimated 
on  her  part,  that  she  either  expected  or  demanded  any  further 
account,  or  that  she  had  any  other  claim  against  the  said 
James  W.  Read  and  this  defendant;  and  defendant  then 
believed  that  she  considered  as  he  did — that  the  settlement 
was  final  and  conclusive,  well  understood  and  apprehended 
by  her,  and  entirely  acquiesced  in  on  her  part.  Nor  did 
defendant  ever  hear  of  any  dissatisfaction  on  her  part  until 
after  her  intermarriage,  &c.,  and  then  not  until  the  lapse  of 
some  time  after  the  marriage,"  &c. 

The  bond  thus  given  by  the  defendant  to  Mrs.  Read  in 
July,  1852,  was  payable  in  one  and  two  years,  with  inter- 
est from  the  date.  On  20th  July,  185.3,  the  plaintiff,  who 
had  in  the  meantime  intermarried  with  Mrs.  Read,  received 
from  the  defendant  the  annual  interest  on  the  bond,  and  on 
30th  September  of  the  same  year,  he  received  full  payment 
of  the  bond,  which  was  thereupon  delivered  up  to  l)e  can- 
celled. On  21st  Jiine,  of  the  same  year,  the  plaintiff  had 
also  received   payment   from  James  Smith   Colburn   of  the 


294  APPEALS  IN  EaUITY. 

Maflitt  vs.  Read. 

note,  which  had  been  given  by  him  to  the  intestate,  James 
VV.  Read.  Until  nearly  two  years  after  the  arrangement  of 
Jul}',  1852,  and  nearly  eight  months  after  the  final  payment 
of  the  bond,  no  proceedings  were  instituted  against  the 
defendant. 

It  is  not  suggested  that  in  the  meantime  any  discoveries 
had  been  made,  or  any  new  light  shed  upon  the  condition  of 
the  parties. 

Up(M)  a  full  review  of  the  transactions  of  the  several  par- 
ties, the  Court  is  of  opinion,  that  the  plaintiff's  bill  should  be 
dismissed,  and  it  is  so  ordered  and  decreed. 

The  complainant  appealed  on  the  grounds: 

1.  Because  there  was  no  sufficient  evidence  of  any  final 
settlement  between  the  complainant's  intestate  and  the  de- 
fendant. 

2.  Because,  even  if  the  dealings  of  the  parties  were  intended 
as  a  final  settlement  between  the  trustee  and  her  cestiiy  que 
trust,  it  is  respectfully  submitted  that  this  would  not  have 
barred  an  account,  or  entitled  the  defendant  to  have  the  bill 
dismissed,  unless,  1st,  It  had  been  consummated  by  a  release, 
under  seal;  or,  2d,  There  had  been  such  a  lapse  of  time  as 
would  authorize  the  application  of  the  statute  of  limitations; 
or,  3d,  The  settlement  had  so  changed  the  condition  of  things, 
as  to  render  it  inequitable  to  subject  the  defendant  afterwards 
to  an  account. 

3.  Because,  upon  the  examination  of  the  report  and  testi- 
mony, it  does  not  appear  that  the  purchases  and  expenditures 
referred  to  in  the  circuit  decree,  to  support  the  settlement, 
were  made  on  beiialf  of  the  trust  estate,  but  were  in  fact  pur- 
chases made  by  James  Read  personally,  and  constituted  no 
portion  of  the  trust  estate. 

Mitchell,  for  appellant. 

Simons,  contra. 


APPEALS  IN  EaUITY.  21)5 

Charleston,  January,  ISGO. 

Per  Curiam.  We  concur  fully  in  the  excellent  decree  of 
ChanccII(H-  Duiikin,  and,  for  the  reasons  therein  given,  it  is 
allirnied. 

O'Neall,  C.  J,,  AND  Johnston  and  Waiidlaw,  JJ.,  con- 
curring. 

Decree  affirmed. 


296  APPEALS  IN  EaUITY. 


Jewell  vs.  Jewell. 


Daniel  Jewell  and   others  vs.  Benjamin   Jewell   and 

OTHERS. 

Parties — Account— tddministrator — Rents — Agent. 

To  a  bill,  against  an  administrator,  for  account  of  the  estate  of  the  intestate, 
received  by  a  deceased  agent  and  attorney  of  the  administrator  and  heirs,  for 
whose  professional  services  a  large  amount  was  claimed,  held,  that  a  repre- 
sentative of  the  attorney  was  a  necessary  party  to  the  bill. 

H  was  the  agent  of  B,  an  administrator,  to  receive  the  rents  of  a  certain  lot. 
After  some  years,  a  son  of  H  claimed  the  lot  as  his  own,  and  received  the 
rents  for  many  years,  but  permitted  his  father  to  use  them:  held,  that  the  eon 
was  liable  to  account  to  B  for  the  rents  received  by  him. 

Where  an  administrator  receives,  himself  or  by  agent,  the  rents  of  real  estate 
of  the  intestate,  though  his  sureties  may  not  be,  he  is  liable  to  account  to  the 
heirs  for  the  rents  thus  received. 


BEFORE  DUNKIN,  CH.,  AT  CHARLESTON,  JUNE,  1S5S. 

This  case  will  be  understood  from  the  reports,  exceptions 
and  circuit  decree. 

The  first  report  of  the  master,  Mr.  Gray,  filed  on  the  20th 
June,  1856,  is  as  follows: 

The  order  of  Chancellor  Dargan,  on  the  11th  March  last, 
after  directing  a  sale  of  the  house  and  lot  at  the  corner  of 
East  Bay  street  and  Unity  alley,  and  providing  for  the  dis- 
tribntion  of  the  sale,  proceeds  to  direct  the  master  to  take  the 
account  of  the  defendant,  John  Meyer,  the  tenant  of  the 
house,  for  the  rent  due,  and  to  receive  the  same  and  distrib- 
ute the  same  as  the  sales-money.  Also,  that  the  master  take 
and  state  an  account  with  Benjamin  F.  Hunt,  the  defendant, 
of  the  rents  received,  or  to  be  accounted  for  by  him.  And 
also,  to  take  and  state  the  account  of  the  administrator, 
Benjamin  Jewell,  with  the  estate  of  his  intestate  in  South 
Carolina,  and  to  receive  testimony  as  to  the  administration 


APPEALS  IN  EaUlTY.  297 

Charleston,  January,  1860. 

and  distribution  of  the  estate   in  Louisiana,  and   report  the 
same. 

I  respecttully  report  my  investigation  of  the  matters  so 
referred  to  me,  in  the  order  of  lime.  First,  as  to  the  adminr 
istration  account  of  Benjamin  Jewell,  with  the  estate  of 
Benjamin  Jewell,  the  elder,  in  South  Carolina.  I  find  that 
the  said  administrator  executed  his  bond  and  surety  to  the 
ordinary  for  Charleston  district,  on  the  27tli  March,  1829,  in 
the  penal  sum  of  ^8,000.  There  does  not  appear  to  have 
been  any  inventory  of  the  estate  made  by  the  administrator; 
and  the  estate  of  Benjamin  Jewell,  the  elder,  in  South  Caro- 
lina, as  far  as  I  can  discover,  consisted  of  the  house  and  lot 
at  the  corner  of  East  Bay  street  and  Unity  alley,  and  of 
eleven  shares  in  the  Union  Insurance  Company  of  South 
Carolina. 

I  find  that  the  administrator  applied  to  the  ordinary,  by 
petition,  on  the  15th  June,  1834,  for  leave  to  sell  the  said 
shares,  for  the  purpose  of  dislriljulion  ;  and  on  the  25th  of 
the  same  month,  in  that  year,  leave  to  sell  them  was  granted 
by  the  ordinary.  I  further  find  that  the  administrator  passed 
his  accounts  before  the  ordiruiry,  commencing  the  23d  J\ine, 
1829,  to  the  6th  April,  1832,  showing  a  balance  to  the  credit 
of  the  estate,  on  the  last-named  day,  of  nine  hundred  and 
fifty  dollars  eighteen  and  a  quarter  cents,  (.^950  18|,)  a  copy 
of  which  is  herewith  filed.  In  stating  an  account  with  the 
administrator,  I  have  charged  him  with  this  balance,  from 
6th  April,  1832,  with  the  rents  of  the  house  from  that  time, 
and  the  dividends  on  the  Union  Insurance  shares,  up  to  the 
time  when  he  obtained  leave  to  sell  them,  viz :  in  1834;  I 
have,  then,  cliaiged  him  with  the  sales  of  these  shares,  at 
the  then  market  value,  viz:  .^84  each,  amounting  to  ^924;  I 
have  giv,en  him  credit  for  the  taxes  and  insurance  of  the 
property,  from  year  to  year,  and  have  charged  him  with 
interest  on  the  annual  balances,  to  the  Giii  April,  1845,  when 
the  rents  passed  into  other  hands,  so  that  the  amount  due  by 
the  said  administrator,  on   the  5lh  June,  1856,  is  seventeen 


398  APPEALS  IN  EaUlTY. 

Jewell  vs.  Jewell. 

thousand  seven  hundred  and  eighty-three  dollars,  thirty-five 
cents,  ($17,783  35,)  as  will  appear  by  the  account  herewith 
filed. 

1  further  report,  that  I  have  stated  an  account  with  Benja- 
min F.  Hunt,  Jr.,  for  the  rents  of  the  said  house,  from  the 
6th  April,  1S45.  From  an  inspection  of  the  tax  returns,  1 
find  that  the  house  and  lot  have  been  returned  as  the  property 
of  the  said  Benjamin  F.  Hunt,  Jr.,  from  1846  to  1852  inclu- 
sive, before  which  time  they  had  always  been  returned  as 
belonging  to  the  estate  of  Jewell.  I  have  charged  him  with 
the  rents  of  the  house  from  the  6th  April,  1845,  to  16th  June, 

1854,  at  the  rate  of  |300  per  annum,  for  which  his  receipts 
have  been  produced,  and  have  credited  him  each  year  with 
the  taxes  and  insurance,  and  have  charged  interest  on  the 
several  balances,  so  that  the  amount  due  by  the  said  Benja- 
min F.  Hunt,  Jr.,  with  interest  to  the  6th  June,  1856,  is 
$8,549  48.     The   rents   from   the    16th   June,  1854,  to   July, 

1855,  at  an  increased  rent  of  $27  50  per  month,  were  received 
by  Mr.  M.  Goldsmith,  as  agent  of  B.  F.  Hunt,  or  for  estate  of 
Jewell. 

I  further  report,  that  I  have  received  from  the  tenant  of  the 
house,  the  rent  from  the  16th  July,  1855,  to  the  8th  April,  at 
the  rate  of  $27  50  per  month,  amounting  to  $240. 

And  lastly,  I  report,  that  no  testimony  has  been  submitted 
to  me  as  to  the  administration  of  the  estate  in  Louisiana. 

Exception  to  the  report  of  master  Gray,  in  behalf  of  Ben- 
jamin Jewell  and  B.  F.  Hunt,  and  of  other  defendants: 

Because  the  said  report  was  made  up  and  filed  after  the 

above-named  defendants  had  filed  their  answers,  and  neither 

they  nor  their  solicitors  had  notice  to   attend   any   reference 

before  the  master  previous  to  the  filing  of  the  said  report. 

f 

AGREEMENT    IN    THIS    CASE. 

It  is  agreed  between  Mr.  Campbell  and  Mr.  Northrop,  that 
Mr.  Gray  shall  reconsider  his  report  of  20th  June,  1856,  and 


APPEALS  IN  EaUITY.  299 

Charleston,  January,  ISGO. 

that  Mr.  Northrop  shall  have  the  right  to  file  cxci  ptioiis  to 
said  report  as  if  it  hud  not  been  filed  ;  and  that  it  shall  he 
considered  as  open  in  all  respects,  exce{)t  that  whatever  report 
shall  finally  be  made  hy  Mr.  Gray,  shall  be  considered  as 
bearing  date  on  the  20th  June,  1856. 

References  to  close  and  report  to  be  made  up  as  early  as 
practicable,  Mr.  Northrop  engaging  to  avoid  all  delay. 

(Signed)  J  AS.  B.  CAMPBELL, 

C.  li.  NOPvTHROP. 

Charleston,  16th   February,  1S57. 

Exceptions  in  behalf  of  Benjamin  Jewell  to  the  report  of 
James  W.  Gray,  master  in  Chancery: 

I.  That  in  the  account  stated  against  Mr.  Benjamin  Jewell, 
he  should  not  have  been  charged  as  administrator  of  his 
deceased  father,  with  any  of  the  rent  of  the  real  estate. 

1.  Because  there  was  no  evidence  that  he  ever  authorized 
any  one  to  collect  the  rents  on  liis  account  as  administrator; 
for,  as  administrator,  he  had  no  concern  with  the  real  estate, 
and  he  never  received  any  rents. 

2.  Because  it  was  in  evidence  that  all  of  the  said  rents 
were  actually  received  by  the  late  Benjamin  F.  Hunt,  who 
was  the  attorney  of  the  heirs-at-law  of  the  intestate,  for  whom 
he  conducted  the  litigation,  affecting  their  rights  to  said  real 
estate  and  their  status  as  legitimate  children  and  heirs  of  the 
intestate. 

3.  Because  the  evidence  before  the  master  showed  that 
the  late  Colonel  Hunt  managed  the  said  real  estate  for  the 
heirs  of  Jewell,  who  had  entrusted  him  with  the  prosecution 
of  their  rights;  and  that  the  said  Benjamin  Jewell  never 
assumed  any  authority,  or  exercised  any  trust,  in  respect  to 
the  real  estate,  except  as  one  of  the  co-heirs  of  his  deceased 
father. 

H.  That  it  appeared,  from  the  evidence  before  the  master, 
that  the  said  Colonel  Hunt  claimecl  to  appropriate  all  he  had 
received   in    payment  for   his  professional  services,  and   for 


300  APPEALS  11^  EaUlTY. 

Jewell  vs.  Jewell. 

his  advances,  as  the  attorney  of  the  distributees  and  heirs- 
at-la\v  of  the  intestate,  who  were  as  much  concerned  in  the 
same  as  this  defendant,  and  as  well  able  to  protect  their 
interests;  but  that  the  importance  of  the  litigation  to  the 
whole  family  was  such  that  they  were  all  in  the  power  of 
their  said  attorney. 

III.  That,  even  if  the  defendant,  Benjamin  Jewell,  could 
be  held  responsible,  as  administrator,  for  the  rents  of  the  real 
estate  of  his  intestate,  it  appeared  in  evidence  that  all  of  the 
rents  were  received  by  Hunt  &  Shand,  and  their  successor, 
Benjamin  F.  Hunt,  who  were  lawyers,  in  good  standing,  and 
that  the  defendant,  who  was  residing  in  another  State,  was 
justified  in  employing  them  as  professional  men,  and  could 
not  be  made  responsible  for  the  losses  occasioned  by  any 
pretended  defalcation  of  his  attorneys,  in  the  absence  of 
fraudulent  collusion,  which  is  charged  in  the  bill,  but  dis- 
proved by  the  evidence. 

IV.  That  there  was  no  evidence  before  the  master,  in  sup- 
port of  the  charges  of  fraud  against  this  defendant;  that  it 
was  proved  that  he  never  received  any  of  the  rents  of  the 
real  estate;  and  that  there  was  nothing  in  the  evidence  to 
warrant  the  master's  charging  him  with  interest,  or  with 
interest  upon  a  calculation  with  annual  rests. 

Exceptions  in  behalf  of  Benjamin  F.  Hunt,  one  of  the 
defendants,  to  the  report  of  James  W.  Gray,  master  in  Equity: 

1.  That  after  the  coming  in  of  this  defendant's  answer,  and 
the  evidence  before  the  master,  there  was  no  ground  for  any 
account  whatever  against  him. 

2.  That  at  the  time  of  the  filing  of  complainant's  bill  of 
complaint,  the  said  defendant  was  not  in  the  possession  of 
the  property,  of  which  the  complainants  prayed  a  partition, 
nor  in  the  reception  of  the  rents. 

3.  That,  even  if  it  should  be  conceded  that  this  defendant 
had,  for  a  period  of  years,  intrnded  upon  the  real  estate  of 
the  complainants,  and  his  codefendant,  who  were  the  legal 


APPEALS  IN  EaUITY.  301 

Charleston,  January,  1&60. 

owners,  there  is  no  evidence  that  he  did  so,  as  their  confiden- 
tial agent,  or  that  there  was  any  relation  of  trnst  between 
him  and  them,  whicii  conld  snhject  him  to  an  account  in 
chancery,  as  a  defanUing  trustee. 

4.  That  it  appears,  from  th(^  answer  of  this  defendant,  and 
the  evidence  of  Mr.  Philips  and  Mr.  Goldsmith,  that  his  only 
conneclion  with  the  property  in  question,  was  under  the 
direction  of  his  deceased  father,  who  was,  up  to  the  time  of 
his  death,  the  attorney  of  the  heirs  of  Jewell;  and,  wiih  their 
consent,  had  the  entire  control  of  the  property,  and  that  he 
claimed,  without  objection  from  them,  to  be  entitled  to  treat 
it  as  his  own,  on  account  of  his  professional  services  and 
advances. 

5.  That  the  master  has  charged  this  defendant,  in  the 
account  for  rents  received  by  him,  with  rent  from  the  6th  of 
April,  1845,  ujitil  6th  April,  1S53,  or  for  eight  years'  rent,  at 
the  rate  of  $300  yearly  ;  whereas,  the  receipts  given  by  this 
defendant,  in  evidence,  only  show  that  he  received  the  sum 
of  ^315,  and  it  was  proved  that  up  to  Mr.  Phillips, 
the  clerk  of  Col.  Hunt,  actually  received  all  of  the  rents,  and 
credited  them  to  Col.  Hunt ;  and  that  Mr.  Goldsmith  received 
the  rents,  in  the  same  way,  from  January,  1853,  after  which 
lime  it  is  not  pretended  that  this  defendant  ever  received  any 
portion  of  the  rents. 

6.  That  the  master  has  charged  this  defendant  interest, 
with  annual  rests,  as  if  he  were  a  defaulting  executor,  or 
trustee,  whereas,  there  is  no  pretence  that  he  ever  had  any 
such  relation  to  the  parties  in  interest. 

SECOND    REPORT    OF    THE    MASTER,    MR.    GRAV. 

Since  the  filing  <»f  my  report  of  the  20th  June,  1856,  I 
have  been  atte;)ded  by  the  solicitors  of  the  parties,  and  taUen 
the  testimony  of  several  witnesses,  and  have  investigated  the 
claim  of  licujamin  F.  Hunt,  for  professional  services  ren- 
dered to  the  parties  in  the  cause. 


302  APPEALS  IN  EaUITY. 

Jewell  vs.  Jewell. 

After  much  consideration  of  the  testimony  and  the  char- 
acter of  the  cause,  I  have  conchided  that  my  former  report 
ought  to  be  modified  in  several  important  particulars. 

From  the  testimony  given  in  relation  to  the  claim  of  Benj. 
F.  Hunt,  I  am  satisfied  that  his  services  were  of  the  greatest 
importance  to  the  parties  interested  in  the  estate,  and  I  have 
conchided  to  allow  for  the  claim,  five  thousand  and  ninety- 
four  dollars  forty-three  cents,  ($5,094  43,)  to  be  paid  out  of 
the  assets  chargeable  to  Benjamin  Jewell,  the  administrator 
of  the  estate,  which  were  in  Mr.  Hunt's  hands,  as  his  attorney. 
This  has  rendered  necessary  a  re-statement  and  modification 
of  the  account  filed  with  the  former  report. 

In  taking  the  account  with  the  administrator,  under  this 
new  aspect,  I  have  charged  him  with  the  monies  received, 
from  time  to  time  ;  but  not  with  the  interest  on  the  annual 
balances,  as  the  items  constituting  the  claim  of  Mr.  Hunt 
run  through  the  long  space  of  time  in  which  the  important 
cause  of  Jewell  vs.  Jewell  had  been  pending  in  the  various 
courts.  After  stating  t!ie  account  in  this  matter,  I  find  there 
is  due  by  the  administrator,  Benjamin  Jewell,  Jr.,  to  the 
estate,  two  thousand  seven  hundred  and  eighty-six  dollars 
forty-eight  cents,  ($2,7SG  4S,)  as  per  account  A,  herev/ith 
filed. 

In  taking  the  account  with  Benjamin  F.  Hunt,  Jr.,  the 
defendant,  I  find,  as  stated  in  my  former  account  and  report, 
that  the  rents  of  the  house  on  East  Bay  were  received  by 
him  from  1S45,  and  that  the  tax  returns  from  1846  to  1852, 
inclusive,  were  made  in  his  name,  as  his  property;  and  his 
receipts  for  the  rents,  from  6th  xVpril,  1845,  to  16th  June, 
1854,  have  been  exhibited  to  me  at  the  rate  of  ^300  per 
annum.  I  have  taken  this  account  in  the  manner  stated  in 
my  former  report,  charging  interest  on  the  annual  balances, 
and  crediting  each  year  the  taxes  and  insurance.  In  the 
former  report,  I  found  that  the  balance  stated  in  this  account 
was  due  by  Benjamin  F.  Hunt,  Jr.,  as  his  acts,  in  relation  to 
the  property  served  to  indicate  that  he  treated  it  as  his  own. 


APPEALS  IN  EaUITY.  803 

Charleston,  January,  1860. 

But  I  have  re-considered  this  matter,  and  from  the  testimony 
since  produced,  am  disposed  to  think  that  this  amount  ought 
also  to  be  charged  to  the  administrator.  Mr.  Phillips,  who 
was  clerk  in  Col.  Hunt's  oflice  from  1841  to  1849,  testifies, 
that  with  the  consent  of  Col.  Hunt,  these  rents  were  received 
by  him,  and  applied  to  the  pMyment  of  his  salary  as  clerk. 
Another  witness,  Henry  Goldsmith,  testifies,  that  to  1853,  the 
rents  were  collected  by  Mr.  Whitney,  and  applied  to  the 
payment  of  rent  due  by  Col.  Hunt  to  Dr.  Geddings  ;  and  that 
the  witness  afterwards  collected  the  rents,  and  accounted  for 
them  to  Col.  Hunt;  also,  that  he  made  the  return  in  the 
name  of  B.  F.  Hunt,  Jr.,  beginning  in  1853,  as  he  tiien  found 
it  made,  and  so  he  made  it  at  the  direction  of  Col.  Hunt. 
It  would  seem  then  that  B.  F.  Hunt,  Jr.,  did  not  derive 
any  benefit  from  the  rents,  and  his  answer  corroborates  the 
fact. 

I  find  that  the  amount  due  on  this  account  is  three  thou- 
sand nine  hundred  and  thirty-seven  dollars  fifty-five  ce  nts 
(§3,937  55);  and  if  I  am  right  in  the  above  conclusion,  the 
administrator  will  be  liable  for 

Account  A ^2,786  48 

And  for  the  account  B  3,937  55 

Amounting,  together,  to   6,724  03 

I  further  report,  that  the  rents  from  the  16th  June,  1854,  to 
the  lf)th  July,  1855,  at  an  increased  rate  of  §27  50  per  month, 
were  received  by  Mr.  Goldsmith,  as  agent  of  B.  F.  Hunt,  or 
for  the  estate  of  Jewell;  and  that  one  quarter's  rent  was  paid 
to  Mr.  J.  B.  Campbell.  The  rents  from  the  16th  July,  1855, 
to  the  16th  April,  1858,  liave  been  paid  to  me  by  the  tenant, 
John  Meyer,  now  deceased,  and  by  Mr.  Meyer,  the  present 
occupant,  at  the  rale  of  §27  50  per  month. 

I  further  rep<ut,  that  at  the  time  of  filing  the  bill,  the  4th 
September,  1855,  John  Meyer  was  in  possession  of  the  house, 
as  tenant,  who  declined  paying  the  rents  to  any  person  until 
ordered  by  tliis  Court,  and  these  rents  were  paid  to  me  as 
above  mentioned. 


•^04  APPEALS  IN  EaUlTY. 


Jewell  vs.  „Tevvel 


I  further  report,  that  of  the  eight  distributees  of  the  estate 
of  A.  Bondy  and  wife,  and  her  children,  and  Jane  E.  Jewell 
and  her  family,  by  their  several  answers,  and  Mrs.  Juliana 
Ricken backer,  as  appears  from  her  letter  to  her  brother,  dated 
1st  April,  1855,  which  is  in  evidence,  object  to  any  account 
being  taken  against  the  administrator;  so  that  the  liability  of 
the  iidministralor  will  be  reduced  by  their  shares,  amounting 
to  three-eightlis,  and  Benjamin  Jewell's  share,  one  other 
eighth,  to  one-half  of  the  sum  reported. 

I  further  report,  that  since  the  former  report,  1  have  ascer- 
tained that  in  addition  to  the  other  assets  of  the  estate,  there 
are  two  shares  in  the  Union  Bank  of  this  city,  standing  in  the 
name  of  B.  F.  Hunt,  attorney  of  Benjamin  Jewell,  on  which 
Col.  Hunt  has  received  thirty-seven  dividends,  amounting 
to  $105,  which  I  have  included  in  account  A,  and  there  are 
still  in  the  bank,  undrawn,  fourteen  dividends. 

Memoranda  of  causes  m  ivhich  Col.  Hunt  ivas  engaged  for 

the  Jewells. 

1S30.  July  2. — Obtaining  letters  of  administration  on  the 
estate  of  Beuj.  Jewell. 

Defending  administration  on  citation  before  the  ordinary, 
when  administration  to  B.  Jewell  was  revoked  and  awarded 
to  Simon  Magwood. 

1833.  Trial  of  the  cause  of  Jewell  and  Magwood,  in  the 
Court  of  Common  Pleas,  on  appeal  from  the  ordinary,  result- 
ing in  verdict  for  the  plaintiff,  Benj.  Jewell. 

1834.  April. — Same  cause  on  appeal,  confirming  the  ver- 
dict below,  and  re-establishing  the  administration  of  B.  Jewell, 
and  thereby  settling,  in  the  State  Courts,  the  legitimacy  of 
Benj.  Jewell  and  his  family. 

1834.  December, — Ejectment  suit,  Roe,  dem.,  S.  J.  Jewell 
et  al.  vs.  Benj,  Jewell,  for  the  recovery  of  the  property  at  the 
corner  of  Unity  alley  and  East  Bay,  in  the  United  States 
District  Court,  at  Charleston,  S.  C. 


APPEALS  IN  EaUlTY.  805 

Charleston,  January,  1860. 

1S34.  The  case  of  Sophia  Storiie  and  husband,  for  dower, 
vs.  James  Preston,  brought  in  the  name  of  Juo.  B.  Thompson, 
in  which  Messrs.  Pettigru  and  Lesesne  pleaded,  first,  ne  un- 
qucs  accouplie,  and  second,  elopement  and  aduUery — result- 
ing in  non-suit. 

Judgment  on  file  in  the  Court  of  Common  Pleas. 

1843.  The  esse  of  Jewell  vs.  Jewell,  as  reported  in  1 
How,,  219  to  234,  in  which  the  judgment  of  the  Circuit 
Court  was  reversed  as  to  the  ruling  of  the  testimony,  which 
had  been  for  the  defendants,  Col.  Hunt's  clients. 

1843.  Col.  Hunt  represented  his  clients  in  a  suit  brought 
in  the  Court  of  Common  Pleas,  (State,)  and  subsequently  in 
the  new  trial  in  the  United  States  Court,  in  which  plaintiffs 
were  non-suited  in  April,  1843. 

1843.  April. — Sarah  J.  Jewell  and  otliers  vs.  Benjamin 
Jewell  and  others.  Bill  in  chancery,  filed  by  Asliby,  solici- 
tor, and  discontinued. 

TESTIMONY. 

/.  L.  Petigru.  sworn,  says  of  the  inception  of  tlio  case  of 
Jewell,  he  is  ignorant.  The  decisions  in  the  Court  of  Ordi- 
nary, and  the  Court  of  Law  had  been  made,  and  Jewell  had 
got  the  administration  of  the  estate  before  the  witness  was 
retained.  Witness  came  in,  on  the  retainer  of  the  widow, 
who  desired  him  to  recover  the  house  in  Charleston.  Witness 
brought  ejectment.  Witness  told  her  that,  as  the  estate  was 
in  Louisiana,  they  had  better  decide  the  question  there.  lint 
the  l^ouisiana  lawyers  told  her,  that  the  question  must  be 
decided  according  to  the  law  of  the  place  where  the  supposed 
marriage  took  place,  and  that  the  decision  here  would  be  of 
the  last  importance  in  ascertaining  the  lieirs  of  the  Louisiana 
estate,  which  was  understood  to  be  large.  The  first  trial  took 
place  in  the  Circuit  Court  of  the  United  States,  when  Judge 
Lee  presided  ;  it  was  argued  by  Mr.  Legare  and  witness  on 
one  side,  Mr.  King  and  Mr,  Hunt  on  the  other,  and  resulted 
21 


m)6  APPEALS  IN  EQUITY. 


Jewell  vs.  Jewell. 


in  a  mis-trial.  Judge  Lee  said  he  had  never  heard  a  case 
better  argued.  Witness  thinks  Col.  Hunt  argued  the  case 
with  great  skill  and  ability.  He  prepared  for  a  second  trial 
with  might  and  main,  and  when  it  took  place,  Judge  Wayne 
presided.  It  was  argued  by  Mr.  Legare  and  witness  on  one 
side,  and  by  Mr.  Hunt  and  Mr.  King  on  the  other.  The 
questions  involved  were  of  the  greatest  magnitude,  going  to 
the  examination  of  the  very  institution  of  marriage,  and  the 
conditions  necessary  to  its  validity.  The  Judge  charged 
against  us  throughout.  Witness  took  exceptions  to  his  charge, 
and  to  his  ruling  of  testimony.  The  case  is  reported  in  1 
Howard.  When  the  case  came  on  in  the  Supreme  Court, 
Judge  Story  was  not  there,  and  the  other  Judges  were  equally 
divided  on  the  great  question  about  what  is  essential  to  the 
contract  of  marriage.  The  case  was  sent  back  for  error  of 
the  Judge  in  ruling  out  evidence,  which  he  ought  to  have 
received.  The  case  was  argued  in  the  Supreme  Court  by  Mr. 
Legare,  and,  witness  thinks.  Col.  Hunt.  Witness  prepared 
very  extensively  for  the  last  trial.  We  had  got  but  a  short 
way  in  the  evidence,  when  Judge  Wayne  ruled  out  a  very 
important  piece  of  testimony.  Witness  was  so  annoyed  by 
this  ruling,  that  he  told  the  crier  to  call  the  plaintiff,  and  upon 
the  Judge  asking  tlie  reason,  replied,  that  he  could  not  afford 
to  go  to  Washington  every  year  to  settle  points  of  evidence. 
Witness  intended,  at  the  time,  to  renew  the  action  in  the  State 
Court,  but  nothing  further  was  done,  as  he  understood  that 
his  clients  had  lost  all  their  property.  The  case  was  in  Court 
many  years.  Witness  received  from  Mr.s.  Jewell  $200,  and 
he  spent  more  than  that  for  the  expenses. 

Witness  cannot  say  what  Col.  Hunt's  services  were  worth. 
If  (/ol.  Hunt's  client,  on  the  termination  of  the  case,  had 
tgiven  hini  $5,000,  witness  would  have  thought  it  liberal,  and 
would  have  seen  no  objection  to  his  taking  it.  If  witness's 
clients  had  offered  him  $5,000,  and  he  had  thought  they 
could  afford  it,  he  would  have  accepted  it,  without  any  feel- 


APPEALS  IN  EaUITY.  307 

Charleston,  January.  1860. 

ing  of  impropriety;  but  should  have  felt  bound  to  give  Mr. 
Legare  his  share. 

John  E.  Phillipft,  sworn,  says,  upwards  of  fifteen  years 
ago  he  commenced  staying  in  Col.  Hunt's  office,  in  the  year 
1842 — probably  before.  He  several  times  collected  the  rents, 
say,  generally  collected  the  rents  of  the  East  Bay  house. 
Witness  accounted  to  Col.  Hunt,  wlien  he  was  agent,  for  the 
rents,  and,  by  leave  of  Col.  Hunt,  received  them  on  account 
of  his  salary.  Thinks  the  rent  was  $300  per  annum,  and 
witness's  salary  was  originally  $.300,  and  afterwards  more. 
Thinks  B.  F.  Hunt,  Jr.,  became  copartner  with  his  father 
soon  after  his  admission  to  the  bar.  Thinks  about  five  years 
after  witness  entered  Col.  Hunt's  office.  Thinks  he  left  Col. 
Hunt's  office  about  eight  years  ago.  Was  not  there  as  late 
as  1S51,  as  he  thinks.  Has  no  recollection  of  having  ever 
returned  this  property  for  the  taxes.  Witness  knows  thai  all 
the  rent  of  the  house,  up  to  the  time  of  witness'  leaving  Col. 
Hunt's  office,  was  applied  to  his  salary,  as  ch-rk.  During 
that  period,  witness  can  say,  that  no  one  received  rents  but 
himself  Cannot  say  the  arrangement,  that  he  was  to  bo  paid 
from  this  rent,  commenced  with  entrance  into  the  office,  but 
a  year  or  two  afterwards. 

H.  Goldsmith,  sworn,  says  he  was  engaged  by  Col.  Hunt, 
as  out-door  clerk,  in  1S50,  and  entered  his  office  in  1S51,  and 
continued  until  after  the  office  was  taken  from  him.  Thinks 
in  1852  was  the  first  he  returned  the  property  for  taxes,  the 
only  guide  he  had  for  the  way  of  making  the  return,  which 
was  in  the  name  of  B.  F.  Hunt.  He  made  the  return  by 
direclion  of  B.  F.  Hunt.  Witness  saw  very  little  of  B.  F. 
Hunt,  .Jr.,  at  his  father's  offiice,  while  he  was  there;  was  there 
occasionally,  but  was  seldom  engaged  in  professional  business 
there.  They  were  partners.  The  books  of  the  office  were  in 
the  name  of  Hunt  &  Son.  Witness  commenced  collecting 
the  rents  immediately  after  Whitney's  receipt,  which  was  in 
1853.  Witness  followed  the  form  of  Whitney's  receipt  for 
the  two  next  receipts,  and  afterwards  receipted  in  the  name 


308  APPEALS  IN  EaUlTY. 

Jewell  vs.  Jewell. 

of  Col.  Hunt,  Witness  believes  that  the  rent  which  Whitney 
received  went  to  Dr.  Geddings,  to  pay  Col.  Hunt's  rent. 
Witness  collected  the  rents  after  that  time,  and  accounted  to 
Col.  Hunt,  or  his  order.  Witness  has  tax  receipts  and 
vouchers  for  repairs  done  to  the  house.  In  1853  he  returned 
it  as  property  of  B.  F.  Hunt;  in  1854,  1855  and  1856,  as 
estate  of  B.  Jewell.  Witness  accounted  to  Col.  Hunt  for  all 
the  rent,  except  one  quarter's  rent,  which  he  paid  Mr.  Camp- 
bell, by  virtue  of  a  letter  which  Mr.  Campbell  showed  him. 
That  was  a  letter  from  B.  F.  Hunt,  Jr.,  authorizing  Mr. 
Campbell  to  receive  the  rents. 

('I'he  letler  is  produced  by  Mr.  Campbell,  on  the  call  of  Mr. 
Northrop.) 

Col.  Hunt  always  acted  for  his  son,  as  if  it  were  his  own 
business. 

Exceptions  to  the  Report  of  master  J.   W.   Gray,  of  June, 
1858,  on  behalf  of  the  defendant,  Benjamin  Jewell. 

1.  Because  Benjamin  Jewell,  as  administrator  of  the  per- 
sonal estate  of  his  deceased  father,  was  not  responsible  for 
the  rents  of  the  real  estate  of  his  intestate,  except  for  such 
sums  as  were  actually  received  by  him. 

2.  Because,  if  Messrs.  Hunt  &  Shand  were  authorized  to 
collect  rents,  in  the  name  of  the  administrator,  and  charge 
the  same  in  his  account  with  the  ordinary,  then  he  should 
be  only  chargeable  with  the  balance  of  the  last  account 
rendered    by    them,    before    the    ordinary,    viz  :     6th    April, 

1832 $950   18 

And  the  following  sums,  received  by  Col.  Hunt,  for 

him,  as  administrator,  viz: 

Dividends,  April,  1833 93  50 

"  "         1834 93  50 

"  "         1835 93  50 

Sales  of  eleven  shares  Insurance  stock 924  00 

Dividends  on  two  shares  Union  Bank 105  30 

$2,259  98 


APPEALS  IN  EaUITY.  309 

Charleston.  January,  ISGO. 

whicli  Slims  he  was   warranted  in  leaving  in  the   hands  of 
Col.  Hnnt  for  the  e.vpenses  of  htigation. 

3.  Becans?  there  were  no  cireumstanccs  in  evidence  to 
justify  the  charges  of  interest  npon  the  halances  of  tlic 
acconnt,  as  reported  hy  the   master. 

4.  Because  the  account  taken  in  exhihit  B,  fihMl  with  the 
report  of  the  master,  was  for  rent  collected  by  Col.  Hunt,  who 
was,  during  the  whole  period,  and  hong  before,  tfie  attorney 
of  the  heirs  of  Benjamin  Jewell,  Sr.,  to  whom  the  property 
belonged.  And  this  defendant,  as  administrator,  had  no  con- 
nection whatever  with  the  real  estate,  or  Col.  Hunt's  manage- 
ment of  the  same. 

5.  Because,  even  if  this  defendant  could  be  held  respon- 
sible for  the  rents  collected  by  Col.  Hunt,  there  were  no 
circumstances  in  evidence  which  would  justify  the  charges 
of  interest,  or  the  punitory  charges  of  interest,  on  the  annual 
balances. 

6.  Because  the  whole  claim  of  the  complainants  against 
their  co-heir,  Benjamin  Jewell,  as 'administrator,  is  stale  and 
unjust;  the  last  account  before  the  ordinary  having  been  filed 
more  than  twenty-three  (23)  years  before  the  filing  of  the 
bill,  and  the  ejectment  suit  for  the  recovery  of  the  property 
having  been  brought  against  all  of  the  heirs  of  tlie  intestate, 
and  defended  for  them  jointly,  by  Col.  Hunt,  more  than 
twenty-one  (21)  years  before  the  filing  of  the  bill,  and  these 
pretended  claims  for  rent. 

Exceptions  before  the  master,  hy  complainants. 

1.  Because  he  has  allowed  to  the  administrator  credit  for 
the  large  sum  of  $5,094  43,  for  the  professional  services  of 
Col.  Hunt,  upon  insufficient  evidence  of  such  services,  and 
of  their  value,  and  of  the  right  to  charge  the  same,  in  his 
accounts,  to  the  estate  of  his  intestate. 

2.  Because,  in  his  account  with  the  administrator,  he  has 
stated    the   interest  account  without   annual    rests,  and   the 


310  APPEALS  IN  EGlUITY. 

JeM'ell  vx.  Jewell. 

account  appended  to  the  original  report,  is  a  correct  account, 
and  the  same  ought  to  be  confirmed. 

These  exceptions  were  heard  and  overruled  by  tlie  master 
for  the  reasons  given  in  his  report. 

The  complainants  renew  their  exceptions,  iieretofore  taken, 
before  the  master,  and  further  except  as  follows: 

1.  Because  the  account  with  the  administrator,  Benjamin 
Jewell,  is  incorrectly  stated.  It  should  have  been  made  up 
with  interest  on  both  sides,  and  annual  balances  in  the  usual 
and  established  way  of  accounting  in  this  Court;  and  the 
account  appended  to  the  first  report,  in  tiiis  case,  is  correct  in 
form,  and  whatever  set-off,  or  credit,  the  administrator  may 
be  entitled  to,  ought  to  be  credited  to  him  in  like  manner 
and  form,  and  then,  a  final  balance  being  struck,  will  show  a 
fair  and  just  account. 

2.  Because  the  master,  by  his  report,  has  discharged  B.  F. 
Hunt,  Jr.,  from  all  liabilit-y  for  the  rents  of  the  premises,  at 
the  corner  of  East  Bay  and  Unity  alley,  while  in  his  pos- 
session, and  claimed  by  him  as  his  own  property. 

DuNKiN,  Ch.  The  exceptions  to  the  master's  report  can- 
not well  be  understood  withinit  some  preliminary  statement 
of  the  facts.  These  are  principally  derived  from  what  is 
termed  "the  paper  book,"  in  Jewell  vs.  Jewell,  reported  in 
1  How.,  219;  as  well  as  the  report  of  Judge  Martin,  and 
the  opinion  of  the  Appeal  Court,  by  Judge  Harper,  in  1833- 
1834,  in  Jewell  vs.  Magwood,  Rich.  Eq.  Cas.,  113,  together 
with  the  evidence  taken  by  the  master  in  this  cause. 

About  the  year  1794-5,  Benjamin  Jewell  resided  in  Savan- 
nah, where  he  kept  a  grocery  store.  In  1795,  Mad.  Prevost, 
a  French  refugee,  from  St.  Domingo,  with  her  family,  arrived 
in  Savannah.  Sophie  Prevost  was  her  daughter.  Accord- 
ing to  the  evidence,  a  marriage  ceremony  afterwards  took 
place  between  Benjamin  Jewell  and  Sophie  Prevost.     As  he 


APPEALS  IN  EaUITY.  311 

Charle^ilo^,  Jiuuiary,  1S60. 

was  an  Israelite,  and  she  a  Roman  Catholic,  ihoir  union  was, 
according  to  the  Jewish  rules,  irregular.  But  they  lived 
together,  as  man  and  wife,  for  several  years,  in  Savannah. 
About  1804,  they  removed  to  Barnwell  district,  and  resided 
some  two  years,  about  ten  miles  from  the  Court  House.  They 
then  went  to  Charleston,  where  they  lived  together  until 
about  1812.  During  this  interval,  they  passed  as  husband 
and  wife,  and  eight  children  were  born  to  the  marriage.  On 
the  other  hand,  in  March,  1796,  while  they  were  living  in 
Savauiuih,  Sophie,  under  her  maiden  name  of  Sophie  Pre- 
vost,  executed  a  paper,  in  the  presence  of  two  very  respecta- 
ble witnesses,  in  which  she  acknowledged  the  receipt  of  ^500 
from  Benjamin  Jewell,  as  well  in  satisfaction  of  a  suit  insti- 
tuted against  him  for  broach  of  promise  of  marriage,  as  also 
in  payment  of  past  cohabitation  and  of  future  cohabitation. 
And,  on  10th  December,  1810,  during  their  residence  in 
Charleston,  a  deed  of  separation  between  them  was  executed, 
reciting  their  i)ast  cohabiialion,  and  jjrovidiiig  ft)r  the  pay- 
ment to  her,  by  the  name  of  Sophie  Prevost,  of  the  sum  of 
^3,000.  and  a  bill  of  sale  of  four  negroes,  (by  name,)  and 
some  scheduled  furniture.  She  executed  receipts  for  the 
same,  as  Sophie  Prevost,  on  11th  January,  1811,  and  the 
papers  were  duly  proved  and  recorded  in  the  Secretary  of 
State's  office,  on  tlie  day  last  mentioned.  It  was  also  pro- 
vided by  this  instrument,  that,  of  their  eight  children,  she 
should  retain  three,  to  wit:  Juliana,  Daniel  and  Washington, 
and  the  father  should  take  Benjamin,  Joseph,  Hannah,  Hetty 
and  Delia. 

In  June,  1S13,  Benjamin  Jewell  intermarried  with  Sarah 
Isaacs,  a  Jewess,  of  respectable  family,  in  Richmond,  Vir- 
ginia. 'I'hey  resided  in  Richmond  until  the  year  1820,  and 
perhaps,  rather  later,  when  they  removed  to  the  State  of 
Louisiana.  He  continued  a  resident  of  that  State  until  his 
death,  which  took  place  in  the  latter  [lart  of  1828.  In  the 
meantime,  and  during  the  lifetime  of  Benjamin  Jewell,  to 
wit:    about   the   year    1820,  Soi)hic    had    intermarried    with 


312  APPEALS  IN  EaUlTY. 


Jewell  vs.  Jewell 


Joseph  Storne,  of  Charleston,  whose  name  she  ever  after- 
wards bore,  and  whom  slie  survived. 

It  is  stated  in  the  pleadings,  that  Benjamin  Jewell  died,  pos- 
sessed of  a  large  estate  in  Louisiana,  which,  npon  his  decease, 
fell  into  the  hands  of  his  reputed  widow  in  that  State,  and  his 
children  by  her.  He  owned,  in  South  Carolina,  a  lot  of  land, 
with  a  wooden  house  thereon,  situate  at  the  corner  of  East 
Bay  and  Unity  alley,  and  also  eleven  shares  in  the  Union  In- 
surance Company.  The  late  Col.  Simon  Magwood  was  his 
agent  to  receive  and  remit  the  rents  and  dividends  of  stock, 
a!]d  the  receipts  of  Benjamin  Jewell,  as  late  as  1828,  were 
established  by  Charles  A.  Magwood. 

At  the  time  of  Benjamin  Jewell's  death,  some  of  the  chil- 
dren, by  his  marriage  with  Sophie  Prevost,  were  resident  in 
Louisiana,  and  some  in  South  Carolina.  The  evidence  does 
not  enable  the  Court  to  fix  the  residence  of  each.  But  the 
two  plaintiffs,  Daniel  Jewell  and  Juliana  Rickenbacker,  were 
residents  of  South  Carolina — the  former  living  in  Charleston, 
the  latter  in  Charleston  or  in  Orangeburg.  The  defendant, 
Benjamin  Jewell,  was,  at  that  time,  a  resident  of  the  parish 
of  Poirjt  Coupee,  in  the  State  of  Louisiana.  Soon  after  the 
decease  of  his  father,  he  repaired  to  South  Carolina,  as  he 
stated  in  his  answer,  and  on  27th  March,  1829,  letters  of 
administration  of  the  estate  were  granted  to  him  by  the  ordi- 
nary of  Charleston  district;  "that  he  appointed  Messrs.  Hunt 
and  Sliand  to  act  for  him,  as  his  agents,  in  the  administration 
of  his  father's  estate,  and  returned  home  to  Louisiana." 

Very  soon  after  the  grant  of  administration  to  the  defen- 
dant, application  was  made  by  Col.  Simon  Magwood,  as 
agent,  or  attorney,  of  Sarah  J.  Jewell,  to  the  ordinary,  for  the 
purpose  of  having  the  defendant's  letters  revoked,  on  the 
ground  that  he  was  of  illegitimate  birth,  and  to  have  the 
same  granted  to  the  applicant,  as  attorney  of  the  lawful 
widow  of  Benjamin  Jewell,  deceased.  A  decree  was  made 
by  the  ordinary,  in  accordance  with  the  prayer  of  the  peti- 
tion, from  which  decree  an  appeal  was  taken  to  the  Court  of 


APPEALS  IN  EaUITY.  31« 


Charleston,  January,  tS60. 


Cominou  Pleas.  The  litigation,  thus  commenced,  was  ac- 
tivelj'  prosecuted  in  the  various  Courts  until  1S41  certainly 
— perhaps  until  1S43.  It  involved  questions,  both  of  law  and 
fact,  of  great  interest  and  importance,  as  will  be  seen  by  the 
records  to  which  the  Court  has  referred.  But  the  result  in 
this  State  was  not  so  important  for  the  amount  involved,  as 
for  establishing  the  status  of  the  parties,  and  also  from  its 
bearing  or  influence  on  the  Louisiana  estate.  Mr.  Peiigru 
(wiio  represented  the  widow  in  the  United  States  Court)  said, 
"  tliat  the  Louisiana  lawyers  had  told  his  client,  that  the 
question  must  be  decided  according  to  the  laws  of  the  place 
where  the  supposed  marriage  took  place,  and  that  the  decision 
lierc  would  be  of  the  last  importance  in  ascertaining  the 
heirs  of  the  Louisiana  estate,  which  was  understood  to  be 
large," 

Tlie  suit  in  reference  to  the  right  of  administration,  was 
finally  determined  in  favor  of  the  defendant,  Benjamin  Jewell, 
by  the  judgment  of  the  Court  of  Appeals,  on  14th  April,  1834. 

Proceedings  in  ejectment  were  then  instituted  in  the  Cir- 
cuit Court  of  the  United  States  in  behalf  of  Sarah  J.  Jewell, 
and  her  six  children,  for  the  premises  at  the  corner  of  Unity 
alley.  On  24th  December,  1S34,  the  declaration  and  notice 
were  served  on  Clans  Dascher  (the  tenant)  and  Daniel  (one 
of  the  present  plaintiffs).  A  consent  rule  was  taken  out  by 
which  Benjamin  Jewell,  Samuel  Rickenbacker,  and  Juliana, 
his  wife,  (another  of  the  present  plaintifts,)  Jacob  Meyers,  and 
Delia,  his  wife,  Daniel  Jewell  and  Washington  Jewell,  were 
made  defendants  in  place  of  the  nominal  defendants;  and  a 
plea  of  not  guilty  was  filed  by  Benjamin  F.  Hunt,  attorney, 
in  behalf  of  all  the  defendants;  including,  also,  V^erg  Aigne, 
and  Hannah,  his  wife,  and  Joseph  .Jewell. 

A  detailed  narrative  of  these  jiroceedings  appears  in  the 
writ  of  error  finally  sued  out  on  the  1 1th  May,  1841,  after 
judgment  on  verdict  for  defendant.  It  appears  that  there  had 
been  two  mis-trials  prior  to  the  verdict.  Mr.  Petigru's 
description  of  the  difficulties  in  the  cause,  and  the  forensic 


314  APPEALS  IN  EaUlTY. 


Jewell  vs.  Jewel 


ability  exhibited  in  the  defence,  cannot  be  abridged.  It  ap- 
pears to  have  finally  terminated  in  a  non-suit  in  April,  1843. 

On  4th  September,  1855,  tliese  proceedings  were  instituted 
in  behalf  of  Juliana  Rickenbacker,  Daniel  Jewell  and  Ste- 
phen N,  Berry,  and  Sarah  J.,  his  wife,  alleged  to  be  the 
daughter  of  a   deceased    child    of  Benjamin    Jewell,    which 

child    had    married   one Mitciiell,  and  had   since   died. 

The  object  is  to  have  partition  of  the  premises  at  the  corner 
of  East  Bay  and  Unity  alley,  and  an  account  of  the  rents,  as 
also  an  account  of  the  administration  of  Benjamin  Jewell, 
(the  defendant.)  The  premises  have  been  sold  by  the  master, 
under  the  previous  order  of  the  Court,  and  no  objection  was 
stated  to  partition  among  those  of  the  parties  who  were 
the  heirs  of  Benjamin  Jewell,  deceased,  and  Sophie,  his 
wife. 

In  reference  to  the  rents  of  the  premises,  the  bill  charges 
that,  down  to  1845,  they  were  received  by  the  late  Benjamin 
F.  Hunt,  and  since  that  period  by  iiis  son,  Benjamin  F.  Hunt, 
who  is  made  a  party  defendant,  and  that  the  premises  are 
now  in  possession  of  John  Meyer,  who  is  also  made  a 
defendant.  Benjamin  F.  Hunt,  the  elder,  departed  this  life 
in  1854,  or  early  in  1855,  but  no  legal  representative  is  a 
party  in  this  case. 

On  16th  June,  1856,  an  order  was  maJe  by  Chancellor 
Uargan,  in  tliis  cause,  as  follows:  "On  motion  of  Northrop 
and  Allemong, solicitors  for  Benjamin  Jewell  and  B,  F.  Hunt, 
defendants  in  this  cause,  and,  after  hearing  Mr.  Campbell, 
complainant's  solicitor,  ordered,  that  the  decrees /;;'o  confesso, 
heretofore  taken  against  them,  be  set  aside,  and  that  they 
have  leave  to  file  their  answers  to  the  bill  of  complaint." 

The  bill  charged  the  defendant,  Benjamin  Jewell,  as  ad- 
ministrator of  the    estates,   both    in    Louisiana    and    South 

Carolina.     The  answer  filed June,  1856,  denies  that  he 

ever  administered  in  Louisiana,  or  ever  received  any  part  of 
the  estate  in  that  country — admits  that  he  administered  in 
South  Carolina,  and  that  he   was   informed  by   his   agents, 


APPEALS  IN  EaUITY.  315 

Charleston,  January,  ISCO. 

Messrs.  Hunt  and  SIi:iiid,tliat  the  estate  consisted  of  $950  IS, 
jii  their  hands,  besides  eleven  shares  in  the  Union  Insnrance 
Company,  (afterwards  sold  by  them  for  $924,)  and  a  lot  of 
land  and  wooden  iiouse  thereon ;  that  he  never  received 
any  part  of  tlje  estate  except  $140  or  $150  from  Mr.  Shand  ; 
that,  "on  applying  to  Col.  Hunt  for  a  rendition  of  the  ac- 
connts,  lie  was  informed  that  the  amount  of  property  was 
not  even  sufficient  in  amount  or  value,  to  remunerate  liim  for 
his  professional  services  to  the  estate  and  to  the  heirs;  that 
respondent,  knowing  that  said  services  had  been  very  valu- 
able, believed  him;  that  Col.  B.  F.  Hunt  kept  all  he  recovered 
of  said  estate  in  South  Carolina,  in  payment  of  his  profes- 
sional services." 

No  evidence  was  offered  to  invalidate  the  material  state- 
ments of  the  defendant's  answer,  that  no  funds  had  ever  been 
received  by  him.  He  was  as  much  interested  as  any  other 
distributee  of  the  estate.  The  master's  report  proceeds  on 
the  assumption,  well  sustained  by  all  the  circumstances,  that 
whatever  sums  were  received  were  retained  by  Col.  Hunt, 
and  that  no  part  of  the  same  came  to  the  hand  of  the  defend- 
ant, Benjamin  Jewell. 

The  master's  report  is  filed  12th  June,  1S5S.  The  first 
exception  of  the  defendant,  Benjamin  Jewell,  is  because,  as 
administrator,  he  was  not  responsible  for  the  rents  of  real 
estate  thus  received.  The  Court  is  of  opinion,  that  this 
exception  is  well  taken.  Upon  the  death  of  Benjamin  Jewell, 
the  elder,  the  lot  on  East  Bay  vested  in  his  heirs-at-law.  The 
plaintiffs  were  residents  of  South  Carolina — the  defendant  a 
resident  of  Lotiisiana.  In  taking  charge  of  the  real  estate, 
(if  he  did  so,)  Col.  Hunt  was  no  agent  of  the  administrator. 
His  principal  had  no  such  authority,  and  could  depute  none. 
He  had  been  appointed  administrator  by  the  ordinary  of 
Charleston  district,  and,  uj)on  leaving  the  State  and  returning 
to  his  home,  "he  appointed  Messrs.  Hunt  &.  Shand,  as  his 
agents  in  [hv.  administration."  He  is  responsible  for  the  acts 
of  Messrs.  Hunt  &  Shand  in   the  administration  of  the  per- 


316  APPEALS  IN  EaUITY. 

Jewell  vs.  Jewell. 

snnal  estate  of  his  intestate,  and  no  further.  The  plaintiffs 
being  residents  of  the  State,  were  more  particularly  capably 
of  taking  care  of  their  own  interests  in  regard  to  the  real 
estate.  It  is  very  probable  they  were  not  unmindful  of  those 
interests.  The  plaintiff,  Daniel  Jewell,  was  the  only  one  of 
the  heirs  of  Benj.  Jewell,  deceased,  who,  in  December,  1834, 
was  served  with  a  copy  of  the  declaration  in  ejectment,  "  as 
being  in  possession  of  the  premises,  or  claiming  title  thereto  ;" 
and  Col.  Hunt,  immediately  afterwards,  in  behalf  of  him  and 
of  the  other  heirs  of  Benjamin  Jewell,  deceased,  entered  an 
appearance  and  filed  a  plea  in  the  proceedings  in  the  United 
States  Court.  Thenceforth,  in  all  the  stages  of  the  litigation, 
he  was  on  record  as  attorney  of  the  heirs.  Col.  Hunt  was 
responsible  to  the  defendant,  Benjamin  Jewell,  as  he  was  to 
the  other  heirs,  for  rents  received  by  him  ;  but  Benjamin 
Jewell  is  no  more  responsible  to  the  other  heirs  than  they 
(and  particularly  the  plaintiffs)  were  responsible  to  him  for 
any  short-coming  on  the  part  of  Col.  Hunt,  their  common 
attorney.  The  first,  fourth  and  fifth  exceptions  of  this  de- 
fendant are  sustained. 

Then,  in  regard  to  the  personal  estate  of  Benjamin  Jewell, 
deceased,  the  Court  has  not  been  furnished  with  a  copy  of 
the  inventory,  (if  any  were  ever  made,)  nor  with  any  copy  of 
the  account  said  to  have  been  rendered  by  Messrs.  Hunt  & 
Shand,  or  by  Col.  Hunt,  in  behalf  of  the  administrator  to  the 
ordinary,  6th  April,  1832.  The  Court  is  unable,  therefore,  to 
judge  whether  it  consisted  entirely  of  personalty.  But  on  25th 
June,  1835,  the  Union  Insurance  shares  (the  only  remaining 
personalty)  were  sold  out,  and  that  closed  the  receipts  on 
account  of  the  personal  estate.  Assuming  the  balance  of  the 
account  of  1832  to  be  exclusively  of  personalty,  the  whole 
amount  of  personalty  received  by  Col.  Hunt  was  about  twen- 
ty-one hundred  and  fifty  dollars  ($2,150).  And  the  last 
receipts  of  the  defendant,  as  administrator,  (through  his 
agent,)  was  25th  June,  1835. 

The  only   persons   demanding  any  account  from  the  de- 


APPEALS  IN  EaUITY.  31T 


Charleston,  January,  1860. 


fendaiit  of  the  sum  thus  received  by  his  agent,  are  tlie 
plaintiffs,  Juliana  Rickenbacker  and  Daniel  Jewell.  If  Hetty 
Mitchell,  had  any  claim,  her  personal  representative  would 
alone   have  a  right  to  prefer  it,  and  none  such  is  before  the 

Court. 

The  Court  concurs,  too,  with  the  master,  in  his  construc- 
tion of  the  letter  of  the  plaintiff,  Juliana  Rickenbacker,  to  her 
brother,  the  defendant,  and  which  was  produced  in  evidence 
on  his  behalf.     It  bears  date,  Orangeburg,  April  1,  1855,  and 
was  manifestly  written   in  reply  to  a  letter  of  her  brother,  in 
reference  to  proceedings  instituted,  or  about  to  be  instituted, 
against  him.     The  letter  of  the  plaintiff  must  speak  for  itself. 
She  speaks,  however,  of  the  agreement  under  which  the  suit 
was  undertaken— that  the  paper  was  sent  for  her  signature 
when  she  was  in  Alabama— that  she  was  willing  to  agree  to 
the  terms,  "  if  it  did  not  interfere  with  you,  (the  defendant,) 
Joseph,  or  any  of  my  brothers,"  that  "she  did  not  sign  the 
paper  sent  for  her  signature,  but  had  the  papers  drawn,  as  she 
thought,  by  a  lawyer  at  Cedar  Bluff,"  &c.     It  is   manifest, 
that  she  understood   the  suit  to  be  for  the  real  estate.     She 
says,  "I  have  signed    an   instrument   of   writing,   agreeing, 
when  the  property  is  placed  in   my  hands,  to  give  to  Mr.  C. 
one-third   of  the  amount  I  receive,"  and  she  concluded  by 
saying,"  from  what  I  can  learn,  Mr.  C.  has  the  property,  at 
this  time,  in  possession,  and  has  paid  tax  for  it:  if  so,  why 
not  contend  for  our  right?"     In   the  opi.iion  of  the  Court,  it 
would  do  great  injustice  to    the  author  of  this   letter,  to  put 
any  other  construction    upon    it    than    that    adopted  by   llie 
master,  to  wit:  that  it  was  a  disclaimer  of  any  intention  to 
demand  any  account  from  the  defendant  as  administrator,  or 
"to  interfere  with  him,"  but  to  secure  her  rights  in  the  real 
estate,  of  which  the  solicitor  employed  by  her,  was,  as  she 
understood,  then  in  possession.     But  it  was  due  rather  to  this 
plaintiff,  than    important  for  the   defendant,  that   the   Court 
should  have  said  thus  much  in  regard  to  this  correspondence. 
The  second  and  sixth  exceptions  maintain  the  propositions, 


318  APPEALS  IN  EaUlTY. 


Jewell  vs.  Jewell. 


that,  under  the  circnmstances,  the  defendant  was  guilty  of  no 
default  in  allowing  the  proceeds  of  the  personalty  to  remain 
in  the  hands  of  Col.  Hunt,  and  that  the  claim  of  the  plaintiffs, 
instituted  more  than  twenty  years  after  the  last  receipt,  is  stale 
and  unjust.  In  considering  these  exceptions,  it  should  be 
borne  in  mind,  that  Col.  Hunt  was  not  only  the  agent  of  the 
administrator,  (himself  being  a  resident  of  Louisiana,)  but 
he  was  also  his  solicitor  to  maintain  his  administration. 
When  his  right  to  the  adininistration  was  sustained  in  1834, 
by  the  final  judgment  in  the  State  Court,  the  controversy  in 
the  United  States  Courts  immediately  commenced,  in  which 
Col.  Hunt  represented  the  interests  of  all  the  parties.  It  is  not 
necessary  to  determine,  with  any  precision,  the  value  of  Col. 
Hunt's  services.  The  preliminary  inquiry  is,  whether  the 
defendant  was  guilty  of  any  laches  ?  Whether  he  was  bound 
to  do  for  others  what  he  did  not  do  for  himself?  Nor  is  this 
the  precise  inquiry.  The  plaintiffs  made  no  complaint  for 
more  than  twenty  years  after  the  last  act  of  administration. 
Col.  Hunt  (alone  able  to  have  answered  satisfactorily,)  was 
already  in  his  grave  when  the  claim  was  preferred.  The 
plaintiffs,  Daniel  Jewell  and  Mrs.  Rickenbacker,  with  her 
husband,  resided  in  the  same  community  with  him.  The 
defendant  was  abroad.  The  Court  is  of  opinion  that  the 
disclaimer  of  Mrs.  Rickenbacker  to  charge  her  brother,  the 
defendant,  with  any  default,  not  only  does  credit  to  her  social 
affections,  but  is  founded  on  a  just  view  of  the  principles  of 
this  Court.  The  second  and  sixth  exceptions  of  the  defend- 
ant are  sustained.  This  judgment  disposes  of  the  remaining 
exceptions  on  the  part  of  the  defendant,  and  of  all  the  ex- 
ceptions on  the  part  of  the  plaintiffs  but  the  second,  which  is 
in  relation  to  Benj.  F.  Hunt,  Jr. 

On  this  subject,  the  master  concluded,  from  the  evidence, 
that  the  rents  were  received  by  the  agents  of  Col.  Hunt,  and 
were  applied  to  his  use,  and  according  to  his  directions,  and 
that  the  defendant,  Benjamin  F.  Hunt,  Jr.,  was  not  charge- 
able with  them.     This  is  the  ground  of  the  plaintiffs'  second 


APPEALS  IN  EaUITY.  319 

Charleston,  January,  IS60. 

exception  to  the  master's  report.  The  hill  charges,  among 
other  things,  that,  ahont  tiie  year  1S45,  Col.  Hunt  delivered 
possession  of  the  premises  on  East  Bay  to  the  defendant  (his 
son),  and  allowed  him  to  cjaim  the  same  as  his  own  ;  and 
that  tlie  defendant,  "  well  knowing  that  he  had,  and  conld 
have  no  right  or  title,  fraudulently  and  deceitfully  combined," 
&.C.,  that  the  plaintiffs  "  had  applied  to  the  said  Benjamin  F. 
Hunt,  Jr.,  to  deliver  np  possession  and  account,"  &c.,  "hut 
that,  under  divers  pretences  and  pretexts,  he  had  evaded  and 
refused  their  reasonable  requests."  The  bill  was  filed  4th 
September,  1855.  The  answer  of  Benjamin  F.  Hunt,  Jr.,  is 
explicit  in  tlie  denial  that  he  ever  claimed  the  premises  as 
his  own,  or  did  anything  but  as  the  agent  of  his  father. 
Furthermore,  a  letter  was  in  evidence,  from  this  defendant 
to  the  plaintitis'  solicitor,  and  produced  by  Iiim  on  notice 
from  the  defendant's  solicitor.  It  is  dated  New  York,  18th 
February,  1854,  nearly  nineteen  months  [)rior  to  the  filing  of 
the  bill.  From  the  tone  and  character  of  the  letter,  it  would 
be  inferred  that  he  was  writing  to  his  own  confidential 
adviser,  or  person  charged  with  his  interests.  He  says: 
"  Having  arrived  here  a  few  days  since,  I  address  myself 
again  to  settling  my  Charleston  affairs.  In  the  first  place,  I 
would  like  to  settle  tlie  affair  of  Jewell's  estate  definitely.  I 
claim  no  right  to  the  property,  and  I  do  not  thiidv  there  is 
any  matter  on  record,  which  can  show  any  title  in  me.  I  do 
not  think  my  father  makes  any  claim  to  the  property;  and, 
as  far  as  I  am  concerned,  I  don't  see  how  I  can  be  connected 
with  it  in  any  way."  He  tlien  calls  his  attention  to  other 
matters,  in  which  he  was  interested,  and  concludes  by  say- 
ing, '' Schem  and  Jewell's  business,  I  beg  you  would  advise 
me  how  I  can  close  in  the  speediest  way."  On  the  subject 
of  the  rents,  the  master  incorporates,  in  liis  report,  the  sub- 
stance of  liie  evidence,  which,  as  he  says,  is  corroborated  by 
the  answer  of  the  defendant,  all  showing  that  they  were 
appropriated  to  the  purposes  of  Col.  Hunt,  and  that  the  de- 
fendant derived  no  benefit  from  them. 


320  APPEALS  IN  EaUlTY. 

Jewell  vs.  Jewell. 

Taking  into  consideration  the  previous  letter  of  the  defend- 
ant, as  well  as  his  answer,  and  the  parol  evidence,  the  Court 
is  of  opinion  that  the  conclusion  of  the  master,  exonerating 
this  defendant,  is  well  sustained.  The  exception  is,  there- 
foie,  overruled  ;  and,  as  to  Benjamin  F.  Hunt,  styled  in  the 
pleadings  Benjamin  F.  Hunt,  Jr.,  it  is  ordered  and  decreed 
that  the  bill  be  dismissed. 

If  IS  further  ordered,  that  the  master's  report,  of  June, 
1858,  be  filed  ;  and  that  the  plaintiffs  have  leave,  if  they  shall 
be  so  advised,  to  make  the  personal  representative  of  Benja- 
min F.  Hunt,  deceased,  a  party  in  this  cause.  It  is  finally 
ordered,  that  the  master  report  his  proceedings  under  the 
orders  or  sale  heretofore  made,  and  also  a  statement  of  the 
rents  of  the  premises,  which  have  been  paid  into  his  hands; 
and  that  he  also  report  upon  the  respective  rights  of  the  par- 
ties claiming  to  be  interested  in  the  fund,  with  leave  to  report 
any  special  matter. 

The  complainants,  renewing  their  exceptions  taken  at  the 
circuit  hearing,  appealed  from  the  decree,  as  follows: 

1.  Because  B.  F.  Hunt,  Jr.,  is  liable  to  account,  in  the 
usual  form,  for  the  rents  received  by  himself  or  his  agents, 
while  he  intruded  upon  the  premises,  and  held  the  same  as 
his  own,  without  color  of  title. 

2.  The  defendant,  Benjamin  Jewell,  the  younger,  is  liable 
to  account  to  the  complainants  for  the  estate,  real  and  per- 
sonal, of  Benjamin  Jewell,  the  elder,  received  by  himself,  or 
by  his  authorized  agents  and  attornies. 

3.  The  allowance  to  Benjamin  Jewell,  of  the  alleged  claim 
of  Col.  Hunt,  is  irregular,  and  upon  insufficient  proof  as  to 
its  amount.  It  is  especially  irregular  to  allow  the  large  sum 
of  $1,000,  "for  services  and  advice  as  to  suit  in  New  Or- 
leans," no  proof  of  such  services  or  advice,  or  even  that 
there  ever  was  such  a  suit,  being  offered. 

4.  If  Benjamin  Jewell  is  not  held  liable  for  the  rents,  then 
he  cannot  be  allowed  to  apply  the  personal  estate  to  pay  for 


APPEALS  IN  EaUITY.  :J2I 

Charleston,  January,  ISGO. 

litigation  on  account  of  the  real  estate;  and  there  should  be 
a  separate  account  of  the  real  estate,  wherein  it  should  be 
credited  with  rents,  and  charged  with  its  own  expenses  of 
litigation,  &c. 

The  defendant,  A.  B.  Mitchell,  appealed  upon  the  same 
grounds  as  above. 

Cainpbell,  Di/is^/e,  for  appellants. 
Northrop,  contra. 

The  opinion  of  the  Court  was  delivered  by  « 

Wahhlaw,  J.  We  are  of  opinion  tliat  the  representative  of 
the  late  Benjamin  F.  Hunt  should  be  made  a  party  defend- 
ant in  this  cause.  As  agent  of  Benjamin  Jewell,  he  is  in- 
volved in  all  the  matters  of  controversy,  and  especially  as  to 
the  amount  of  compensation  to  which  he  is  entitled. 

As  the  case  must  be  remanded  to  the  circuit,  and  new 
inquiry  and  report  be  made  by  the  master,  we  consider  it 
prudent  to  refrain  from  amplification  of  the  facts  now  before 
tis,  which  probably  may  be  materially  varied  by  further 
investigation.  Standing  as  the  matter  now  does,  all  the 
grounds  of  appeal  seem  to  have  souk-  merit.  We  do  not 
perceive  on  what  |)rinciple  B.  F.  Hunt,  the  younger,,  can  be 
exempted  from  liability  for  rents  actually  received  by  himself 
and  agents,  while  he  was  in  possession  of  the  premises, 
claiming  ownersliip.  He  now  disavows  title,  but  from  April, 
1845,  to  June,  1854,  it  appears  by  the  reports  of  the  master 
that  be  received  the  rents  and  returned  the  property  to  the 
tax  collector  as  his  own.  It  can  make  no  dilference  as  to  his 
liability,  that  he  appropriated  the  sums  ri^ccived  liy  him  to 
purposes  of  benevolence  and  filial  duty.  It  may  l)e  that  he 
was  then  an  obedient  and  facile  son  of  a  dominant  father, 
but  he  was  of  mature  age,  and  practising  law  in  partnership 
with  his  f.itlier,  the  a:<eut  of  the  administrator.  It  wouJd 
render  the  administration  of  equity  utterly  indefinite  and 
oscillating,  if   liability    were    considered   dependent    on    the 


«22  APPEALS  IN  EQUITY. 


Jewell  vs.  Jewell. 


easiness  or  kindness  of  disposition  of  the  person  pursued. 
The  statute  of  hmitalions  and  the  lapse  of  time  would  not 
avail  this  defendant,  if  pleaded,  but  it  is  enough  to  say  that 
he  makes  no  such  defence. 

We  suppose,  too,  that  the  administrator  of  Benjamin  Jewell 
is  liable  to  account  for  any  rent  of  the  real  estate  of  his  intes- 
tate, received  by  himself  and  his  agents.  That  he  undertook 
the  management  of  this  real  estate,  and  constituted  Messrs. 
Hunt  &  Shand,  as  his  attorneys  in  fact,  for  this  purpose,  are 
charged  sufficiently  in  the  bill,  but  with  no  great  precision, 
and  are*feubstantially  admitted  in  the  answer.  The  primary 
duties  of  an  administrator  relate  to  the  goods,  chattels  and 
credits  of  his  intestate,  and  his  sureties  in  the  administration 
bond  do  not  undertake  beyond  the  faithful  administration  of 
the  personalty,  but  where  he  receives  rents  his  personal 
liability  is  indisputable.  The  statute  of  12  Geo.  II,  c.  5, 
.2  Stat.,  570,  making  real  estates  liable  equally  with  personalty, 
for  debts,  has  produced  a  very  common  interference  of  admin- 
istrators with  the  renting  of  land  ;  and  it  would  be  mischiev- 
ous to  hold  that  where  they  do  interfere,  they  can  take  the 
.rents  to  themselves,  without  responsibility. 

Again,  it  seems  to  us  that  the  large  sum  allowed  to  the 
administrator  for  the  professional  services  of  B,  F.  Hunt,  the 
elder,  proceeds  on  insufficient  proof,  and  to  a  great  extent  is 
conjectural.  It  is  manifest  that  he  deserved  large  and  liberal 
•compensation,  but  the  facts  and  principles  on  whieh  his 
compensation  was  ascertained  should  be  presented  to  the 
Court. 

It  is  ordered  and  decreed,  that  the  circuit  decree  in  this 
■  case  be  vacated  and  set  aside,  and  that  the  cause  l)e  re- 
manded to  the  circuit,  with  direction  to  the  plaintiffs  to 
make  the  representative  of  B.  F.  Hunt,  the  elder,  a  party 
defendant,  within  three  months,  on  pain  of  having  their  bill 
dismissed. 

O'Neall,  C.  J.,  AND  Johnston,  J.,  concurred. 

Decree  set  aside. 


APPEALS  IN  EaUITY.  323 


Charleston,  January,  1S60. 


Nicholas  Culleton  yy.  Thomas  Garritv  and  others. 
Practice. 

Bill  filed  to  subject  trust  property  to  demands  for  work  done  and  improvements 
put  on  it  by  the  tenant  lor  life.  Htld,  that  no  decree  should  have  been  made, 
subjecting:  the  property  to  the  claim,  without  directinar  an  enquiry  into  the 
nature  of  the  contract  ;  by  whom  made  ;  and  the  degrree  of  his  authority;  the 
value  of  the  work  to  the  estate;  its  cost,  and  the  difJerent  intere-^ls  held  in 
the  estate;  also,  as  to  a  proper  scheme  of  providing  for  paying  the  dematids. 

BEFORE  DARGAN,  CII.,  AT  CHARLESTON.  FEBRUARY,  1S5S. 

Dargan,  Ch.  The  facts  stated  in  the  bill  are  not  disputed. 
Thomas  Garrity  being  possessed  of  certain  real  estate,  con- 
sisting of  houses  and  lots  in  the  City  of  Charleston,  by  deed, 
bearing  date  27th  April,  1854,  conveyed  the  same  to  Richard 
S.  Baker,  his  co-defendant,  with  certain  personal  property, 
desribed  therein  in  trust,  "to  permit  and  snffer  him,  the  said 
Thomas  Garrity,  during  the  term  of  his  natural  life,  to  take 
and  receive  the  rents,  issnes  and  profits  of  tin;  said  real 
estate,  and  the  income  derived  from  the  personalty,  and 
ap[)ly  the  same  in  payment  of  the  interest  accruing  on  cer- 
tain mortgages,  alleged  to  exist  against  said  real  estate,  that 
is  to  say,  a  mortgage  to  the  Charleston  Building  and  Loan 
Association,  to  secure  the  sum  of  $2,000,  and  also  a  mort- 
gage to  the  Commercial  Insurance  Company,  to  secure  the 
sum  of  $12,000,  which  last  has  been  assigned  to  the  Provi- 
dent Institution  for  Savings,  in  the  City  of  Charleston,  and 
gradually  to  pay  off  the  principal,  and  for  the  support  of 
himself  and  family,  and  for  the  education  and  advancemenl 
of  his  children,  so  tliat  neither  the  said  property,  nor  the 
income  therefrom,  shall  in  any  way  be  subject  to  the  future 
debts  of  the  said  Thomas  Garrity,  and  from  and  immediately 


32 1  APPEALS  IN  EaUlTY. 

Ciilleton  vs.  Grirriiy. 

after  the  death  of  the  said  Thomas  Garrity,  then  upon  trust, 
that  the  said  Richard  S.  Baker  sliall  hold  the  said  property, 
real  and  personal,  and  dispose  of  the  same  in  such  manner 
as  he,  the  said  Tliomas  Garrily,  by  his  last  will  and  testa- 
ment, may  direct,  and  in  case  he  shall  publish  no  last  will 
and  testament,  and  shall  leave  a  wife,  then  in  trust;  thai  the 
said  Richard  S.  Baker  shall  take  and  receive  the  said  rents 
and  profits,  and  other  income,  and  apply  (the  same)  (or  the 
maintenance  of  the  widow  and  children  of  the  said  Thomas 
Garrity,  and  for  the  education  and  advancement  of  his  chil- 
dren, so  long  as  his  said  widow  shall  remain  unmarried; 
and  after  her  death,  or  marriage,  if  she  shall  survive  the  said 
Thomas  Garrity,  or  in  case  he  shall  leave  no  widow  surviv- 
ing him,  then  in  trust  for  the  benefit  of  the  children  of  the 
saitl  Thomas  Garrity."  On  the  7th  June,  1S54,  the  deed  was 
recorded  in  the  office  of  the  Register  of  Mesne  Conveyance, 
and  also  in  the  office  of  the  Secretary  of  State,  in  Charleston. 
The  family  of  Garrity,  at  the  date  of  the  deed  and  now,  con- 
sists of  his  wife,  Catherine  Garrity,  and  of  his  three  children, 
namely,  Christopher  Garrity,  Thomas  Garrity  and  John  Gar- 
rity, who  are  infants,  and  are  parties  defendants  to  the  bill, 
and  have  answered,  by  their  guardian,  ad  litem.  The  de- 
fendant is,  and  has  from  the  date  of  the  deed  been,  in  the 
sole  and  exclusive  possession  of  the  property,  and  manages 
and  uses  it  as  his  own. 

The  plaintiff  is,  by  trade,  a  bricklayer,  anc]  has  been 
employed  by  Thomas  Garrity,  by  various  contracts,  for  build- 
ing on  and  improving  the  lots  of  land  conveyed  in  the  said 
deed  of  trust,  subsei|uently  to  the  date  thereof.  The  account 
for  the  work  and  the  materials  is  considerable.  The  defend- 
ant, Garrity,  admits  the  charges  of  the  bill  about  the  work, 
differing  from  the  complainant,  as  to  the  amount  due.  The 
plaintiff  prays  that  the  trust  estate  may  be  subjected  to  his 
demand,  and  for  general  relief.  The  defendant,  Garrity, 
resists  the  prayer,  simply  on  the  ground  of  the  trust,  as  do 
also  the  other  defendants. 


APPEALS  IN  EaUlTY.  :Vio 

Cliarlesion,  January.  ISGO. 

It  is  a  rule  of  law,  as  well  as  of  morality,  that  property 
should  be  subject  to  the  payment  of  the  debts  of  the  proprie- 
tor,— to  the  enforced  payment,  if  necessary.  This  liability  is 
one  of  the  incidents  of  property.  Tfie  only  questions  that 
can  be  made  in  such  cases  is,  whether  the  properly  sought 
to  be,  is  the  property  of  the  debt.)r.  The  only  exceptions  to 
this  rule  are  persons  under  disability,  as  feme  coverts?infants, 
lunatics;  and  these,  [)roperly  sjieaking,  are  not  exceptions, 
for,  by  reason  of  their  disaliility,  they  cannot  contract  debts, 
except  under  certain  restrictions.  So  far  as  these  persons 
have  the  competency,  they  can  malce  their  estates  liable. 

As  to  the  liability  of  property  for  the  debts  of  its  owner, 
there  is  no  ditference  between  legal  and  equitable  estates; 
one  is  as  much  liable  as  the  other.  The  only  difTerence  is 
in  respect  of  the  tribunal  through  which  the  property  is 
reached,  and  the  mode  in  which  payment  is  enforced. 
Where  the  debtor  is  possessed  of  the  legal  estate  in  the  pro- 
perty, the  judgment  of  a  Court  of  law,  with  its  writ  of  Jieri 
facias,  are  suflicient.  Under  this  process,  the  sherilF  can 
l(!vy  upon  and  convey  the  legal  estate  in  chattels  and  lands, 
but  lie  cannot  levy  u[)on  and  sell  an  equity.  The  debtor's 
equitable  estate  can  be  reached  alotie  in  the  Court  of  Equity. 
And  it  would  indeed  be  a  reproach  to  this  Court,  if,  having 
the  exclusive  jurisdiction  of  trusts,  it  did  not  enforce  on 
such  estates  the  paynients  of  the  debts  of  cestnis  que  trust, 
where  no  higher  intervened.  I  say  here,  as  I  have  said  else- 
where, there  is  no  scheme  or  device,  which  the  skill  or 
ingenuity  of  man  can  concoct  or  invent,  which  can  baffle  or 
defeat  the  principle  of  law,  that  the  property  of  the  debtor  is 
liable  for  liis  debts,  unless  the  attempt  is  sustained  by  suc- 
cessful perjury. 

There  is  no  fraud  in  this  case.  The  deed  is  a  bold  and 
undisguised  attempt,  by  means  of  a  trust,  to  enable  the  owner 
of  property  to  have  all  its  uses,  benefits  and  enjoymetits, 
without  its  being  liable  for  his  debts.  What  incident  of 
property   is   there   which   in    the  scheme  of  this   trust  is   not 


326  APPEALS  IN  EaUITY. 

Culleton  vs.  Garrity. 

reserved  to  Thomas  Garrity  ?  He  was  to  have  the  sole  and 
exchisive  control  and  njanagement  of  it,  and  from  the  income 
to  pay  certain  debts,  that  are  mentioned,  for  which  the  prop- 
erty was  already  generally  and  specifically  liable,  withont 
any  limit  as  to  the  time  when  this  application  of  the  rents 
and  profits  shonld  be  made  to  the  payment  of  debts.  Such 
of  thai  wicome  as  he  did  not  think  proper  to  apply  to  the  pay- 
ment of  the  debts  mentioned  in  the  deed,  he  was  to  apply  to 
the  maintenance  and  support  of  himse/f  and  his  own  family, 
at  his  own  discretion,  without  any  one  to  call  him  to  account 
for  the  manner  of  its  disbursements.  At  his  death,  the 
trustee  is  to  liold  the  property  for  the  use  of  such  persons  as 
he  by  his  last  will  and  testament  should  designate  and  ap- 
point. And  if  he  shonld  leave  no  will,  the  property  was 
disposed  of  to  his  wife  and  children  very  much  in  the  same 
way  that  it  would  go  by  the  statute  of  distributions  in  cases 
of  intestacy.  Here  is  the  case  of  a  man  affecting  to  dispose 
of  Ills  property,  yet  reserving  to  himself  all  the  benefits,  en- 
joyments and  control  of  it,  while  living,  and  the  right  to  dis- 
pose of  it  at  his  death.  This  is  a  very  barefaced  attempt.  If 
this  scheme  succeeds,  this  case  would  be  a  marked  one,  and 
it  would  afford  a  precedent  for  a  great  deal  of  knavery.  It 
would  be  an  easy  matter  to  defeat  the  principles  so  important, 
so  well  established,  that  the  jnoperty  of  the  debtor  is  liable 
for  the  payment  of  his  debts,  and  the  absurd  distinction  arise 
that  the  legal  estates  are  so  liable,  equitable  estates  are  not. 

It  is  ordered  and  decreed,  that  the  deed  of  trust  mentioned 
in  the  pleadings  be  set  aside,  so  far  as  regards  the  debt  due  to 
the  plaintiff,  and  that  it  be  referred  to  one  of  the  masters  to 
state  the  account  between  the  plaintiff  and  the  defendant, 
Garrity.  It  is  further  ordered  and  decreed,  that  after  the 
amount  has  been  found  by  the  master,  and  the  same  has 
been  reported,  and  the  report  confirmed,  the  said  trust  estate, 
without  distinction  between  income  and  corpus,  be  subject  to 
the  demand  of  the  plaintiff,  and  tliat  the  plaintiff  may  proceed 
against  the  same  by  a  writ  oi  fieri  facias,  to  be  lodged  in  the 


APPEALS  IN  EaUITY.  327 

Charleston,  January,  ISGO. 

hands  of  the  sheriff,  and  to  be  executed  as  in  cases  where 
the  defendant  in  execution  is  possessed  of  the  legal  estate  in 
the  property  proceeded  against.  The  costs  of  this  suit  to  be 
paid  by  the  defendant,  Thomas  Garrity,and  to  be  collected  in 
the  same  way. 

The  defendants  appealed  upon  the  grounds: 

1.  That  the  complainant  cannot  aver  against  his  own  bill, 
and  on  the  face  of  the  bill  the  deed  is  bona  fide  on  good  con- 
sideration, and  the  con)plainant  must  be  taken  to  have  had 
notice  of  it,  as  notice  is  not  denied,  and,  therefore,  the  bill 
should  be  disujissed, 

2.  That  the  decree  is  not  warranted  by  the  pleadings. 
That  on  the  pleadings  the  case  is  that  of  a  creditor  claiming 
payment  out  of  trust  funds,  by  application  of  the  income  to 
the  satisfaction  of  the  debt  ;  but  the  decree  sets  aside  the 
deed  as  fraudulent,  and  orders  payment  out  of  the  property 
as  free  from  any  trust. 

3.  That  the  decree  is  inconsistent  with  the  complainant's 
case,  as  stated  by  himself.  The  complainant  states  a  case 
proper  for  a  certain  relief.  The  decree  grants  relief,  which 
would  not  be  granted,  if  tlie  plaintiff's  case  be  true. 

4.  That  the  remedy  should  be  confined  to  the  relief 
claimed  by  the  bill,  or  the  bill  be  dismissed  on  the  ground 
that  the  complainant  had  contracted  with  the  defendant 
upon  his  personal  security,  without  reference  to  the  trust 
property. 

Northrop,  for  appellants. 

Magralh,  contra. 

The  opinion  of  the  Conrl  was  delivered  by 

Johnston,  J.  The  bill  does  not  allege  that  the  deed  is 
fraudulent;  nor  is  it  easy  to  see  how  Culleton,  who  con- 
tracted in  the  face  of  notice  of  its  provisions,  froiu  the  pul>lic 
registry,  could  well  have  sustained  such  an  imputation,  if  he 
had  made  it. 


S28  APPEALS  IN  EaUITY. 

Ciilleton  vs.  Garrity. 

The  only  questions  in  the  case  were,  whether  the  contract 
made  with  Garrity  entitled  him  to  charge  the  trust  estate,  or 
Garrity's  interest  in  it,  for  the  work  done  by  him. 

Supposing  it  to  be  true  that  a  trust  estate  is  liable  to  be 
charged  for  repairs,  according  to  the  estates  held  by  the  suc- 
cessive tenants,  or  that  the  corpus  may  be  charged  for  perma- 
nent improvements,  proportionably  to  the  value  of  such  work, 
as  explained  in  Magwood  vs.  Johnston,  I  Hill  Ch.,  228,  (ref- 
erence being  had,  perhaps,  to  how  far  the  trustee,  or  person 
making  the  contract,  is  a  debtor,  or  in  advance  to  the  settled 
estate,)  and  moreover,  that  any  interest  such  contracting  party 
may  hold  in  the  trust  property,  may  be  subjected,  in  order  to 
supplement  the  workman's  wages,  on  the  principle  of  Rivers 
vs.  Thayer :  it  appears  to  us  that  the  Chancellor  should  have 
made  no  decree  until  he  had  directed  an  inquiry  into  the 
nature  of  the  contract ;  by  whom  made;  and  tlie  degree  of 
his  authority;  the  value  of  the  work  to  the  estate;  its  cost, 
and  the  different  interests  held  in  the  estate  by  the  persons 
to  whose  use  it  was  settled,  as  well  as  by  Garrity,  with  whom 
the  workman  is  supposed  to  iiave  contracted.  .  Inquiry 
might,  also,  have  been  made  as  to  a  proper  scheme  of  pro- 
viding for  paying  the  demand  of  CuUeton. 

It  is  ordered,  that  the  decree  be  set  aside,  and  the  cause 
remanded;  that  these  inquiries  be  made;  when  the  case  will 
be  properly  before  the  Circuit  Court  for  its  judgment. 

O'Neall,  C.  J.,  AND  Wakdlaw,  J.,  concurred. 
Decree  set  aside. 


CASES    IN    EQUITY 

ARGUED    AND    DETERMINED 

IN   THE  COURT  OF  APPEALS, 

At  Charleston,  April  Term,  1S60. 


JUDGES    PRESENT 


HON.  JOHN  B.  O'NEALL,  Chief  Justice. 
JOB  JOHNSTONE,  Associate  Judge. 
F.  H.  WARULAW,  Associate  Judge. 


Executors  of  Dr.  J.  \V.  Schmidt  vs.  Robert  J^ebby. 
Partnership — ^iccount  Stated. 

Where  iwo  pliysiciaiis  agree  to  iiracticc  in  copartiiersliip.  nnd  divide  the  receipis 
of  their  practice,  each  is  bound  to  devote  his  labor,  skill,  and  services,  as  a 
physician,  to  the  |>roiiioiion  of  the  common  benefit;  to  keep  books,  and  make 
entries  of  charges  and  receipts,  and  have  tiiem  always  ready  for  inspection 
and  ex!)lanation  ;  and  if  one  should,  for  a  considerable  time,  when  in  good 
health  and  full  practice,  neglect  to  keep  any  acconnt  of  his  practice,  he 
must,  nevertheless,  be  required  to  account  for  what  he  made,  upon  such  evi- 
dence as  may  be  adduced. 

Wiiere.  after  the  dissolution  of  a  (inn,  one  of  the  p:irtnt>rs  took  the  i)ooks  to 
collect  the  accounts,  and  he  rendered  siatenients  showing  balances  due  by 
him  on  account  of  his  payments  and  collections  :  Ihid,  thnt  such  statements 
did  not  amount  to  an  account  staled,  so  as  to  preclude  him  from  demnnding 
an  account  from  the  other  partner. 

BEFORE  DARGAN,  CII.,  AT  CHARLESTON.  FEURUARV,  lSr)S. 

This  case  was   rofpired  to  tho  master,  and   was  heard   on 
exce[)tiotis  to  his  report.     The  report  is  as  follows: 


330  APPEALS  IN  EaUITY. 

Schmitit  vs.  Lebby. 

"This  case  was  referred  to  me  to  take  an  account  of  tlie 
partnership  of  Drs.  J.  W.  Schmidt  and  Robert  Lebby,  and  to 
report  thereon, 

"  The  articles  of  partnership  have  been  snbmitted  to  me. 
They  are  dated  the  2d  January,  1S50,  and  provide  that  the 
receipts  arising  from  the  practice  of  medicine  by  the  parties 
to  the  said  partnership,  shall,  during  the  term  of  its  continu- 
ance, he  divided  in  the  proportion  of  three-fourths  to  Dr. 
Schmidt,  and  one-fourth  to  Dr.  Lebby.  On  the  1st  January, 
1853,  the  health  of  Dr.  Schmidt  having  failed,  a  new  arrange- 
ment was  entered  into,  whereby  it  was  agreed  that  the  said 
partnership  should  terminate  on  that  day,  and  that  for  the 
year  185^,  Dr.  Lebby  should  receive  two-thirds,  and  Dr. 
Sclimidt  one-third  of  the  amount  collected,  and  that  Dr.  Leb- 
by should  attend  to  making  out  and  collecting  the  bills  due, 
and  the  final  closing  up  of  the  partnership. 

"•  Dr.  Lebby  has  filed  accounts,  showing  a  balance  due  to 
the  estate  of  Dr.  Schmidt,  on  the  1st  January,  1854,  of 
$2,302  32,  and  an  additional  balance  due  said  estate  on  the 
1st  June,  1856,  of  $407  84.     In  all,  $2,710  16. 

"  These  accounts  are  satisfactory  to  the  complainants.  But 
the  defendant.  Dr.  Lebby,  contends  that  Dr.  Schmidt  did  not 
render  any  account  of  his  earnings  for  the  first  tiiirteen 
months  of  the  partnership,  and  that  whatever  said  earnings 
were,  he  (Dr.  Lebby)  is  entitled  to  his  share,  according  to 
the  partnership  articles,  and  the  same  should  be  set  off 
against  his  indebtedness  to  the  estate  of  Dr.  Schmidt,  as 
shown  by  the  accounts  herewith  filed.  The  complainants, 
wlio  are  the  executors  of  Dr.  Schmidt,  allege  that  they  have 
no  account  of  the  professional  business  of  their  testator,  dur- 
ing his  connection  with  Dr.  Lebby. 

"  From  the  evidence  submitted  by  the  defendant,  it  appears 
that  the  books  of  the  partnership,  in  the  possession  of  Dr. 
Lebby,  do  not  show  what  was  Dr.  Sclimidt's  practice  between 
the  2d  January,  1850,  and. the  9th  February,  1851.  The 
whole  sum  of  the  accounts,  for  the  entire  term  of  the  part- 


APPEALS  IN  EaUITY.  331 


Charleston.  April,  ISfiO. 


nership,  (three  years,)  is  about  ^18,000.  Of  this  amount, 
only  about  §^3,000  was  earned  by  Dr.  Schmidt,  and  this 
between  P\-bruary,  1S51,  and  June,  1852.  No  books  were 
furnished  by  Dr.  Sclimidt  to  show  what  were  the  services 
rendered  by  him  to  the  partnership,  except  the  one  from 
which  the  accounts  filed  by  Dr.  Lebby  are  made  up,  and 
all  that  is  contained  in  that  book  is  embraced  in  the  said 
account. 

"  There  being  no  written  data,  from  which  an  account  can 
be  stated  of  the  practice  of  Dr.  Schmidt  during  the  first  thir- 
teen months  of  the  partnership,  the  defendant  relies  upon 
the  evidence  of  Dr.  Fitch  and  others,  herewith  submitted,  to 
sustain  his  claim  to  a  set-oti"  against  his  indebtedness  to  the 
estate  of  Dr.  Schmidt,  as  shown  by  the  books  of  the  part- 
nership. 

*'  Dr.  Fitch,  who  was  in  jiartnership  wilh  Dr.  Schmidt 
until  the  latter  part  of  1849,  says  that  Dr.  Le])by  immedi- 
ately succeeded  him;  that  Dr.  Schmidt  had,  at  that  tiiue,  a 
large  business  and  a  fine  reputation;  that  he  appeared  to  be 
in  active  practice  during  the  first  year  of  his  connection  with 
Dr.  Lebby,  and  expresses  the  opinion  that  Dr.  Sclimidt  ought 
to  have  made,  during  the  first  thirteen  mouths  of  the  part- 
nership, twice  as  much  as  Dr.  Lebby,  who  had  then  but 
little  practice  and  influence.  Dr.  Panknin,  apothecary, 
testifies  to  Dr.  Schmidt  having  ordered,  in  1850  and  1851, 
medicines  fi)r  the  office  of  Schmidt  &  Co.,  but  not  fi)r  pre- 
scriptions. And  an  extract  from  the  books  of  Drs.  Simons 
and  Dawson,  shows  that  those  gentlemen  attended  a  patient 
in  consultation  with  Dr.  Schmidt,  from  25tli  September  to 
22d  October,  1850. 

"While  this  evidence  clearly  establishes  the  fact  that  Dr. 
Schmidt  did  practice  in  1850,  it  does  not  enable  me  to  deter- 
mine the  extent  of  that  practice,  or  what  were  his  earnings 
during  that  year.  The  opinion  of  Dr.  Filch,  that  Dr.  Schmidt 
ought  to  have  made  twice  as  i7iuch  as  Dr.  Lebby.  seems  to 
be  based  upon  the  relative  amount  of  their  individual  busi- 


3:«  APPEALS  IN  EaUlTY. 


SchiuiJi  vs.  Lebbv. 


ness  previous  to  the  partnership,  and  not  to  the  proportion  of 
service  which  wonld  properly  be  performed  by  each  after  the 
connection.  The  testimony,  also,  of  Dr.  Fitch,  that  Dr. 
Schmidt  was  engaged  in  active  practice  in  1850,  is  rendered 
uncertain  in  respect  to  the  extent  of  that  practice,  by  the 
explanation  of  the  intelligent  witness  himself,  that  he  did 
not  meet  with  Dr.  Schmidt  in  his  practice,  but  that  his  opin- 
ion, as  to  the  extent  of  his  business,  was  formed  from  seeing 
liim  riding  tlirough  the  streets,  and  stopping  at  ditferent 
houses,  where  he  knew  he  attended.  The  only  positive  evi- 
dence on  this  point  is  that  furnished  by  Drs.  Simons  and 
Dawson,  of  their  attendance,  in  consultation,  with  Dr. 
Schmidt,  upon   a  single  patient. 

"But  whatever  may  have  been  (he  practice  of  Dr.  Schmidt 
in  1850,  it  appears  to  be  certain  that  he  entered  no  charge 
against  his  patients,  and  received  no  compensation  for  his 
services  during  that  year.  Dr.  Fitch  states  that  during  the 
time  he  was  in  partnership  with  Dr.  Schmidt,  he,  (Dr. 
Schmidt)  kept  no  regular  account  of  liis  own  practice,  and 
was  careless  about  making  entries  in  the  partnership  books, 
but  that  he  believes  that  the  books  at  the  office  exhibited  all 
the  collections  made  by  Dr.  Schmidt.  '  He  had  no  idea  that 
tiie  Doctor  acted  unfairly  in  the  matter  of  the  accounts.  He 
was  negligent,  but  not  dishonorable.' 

"13iit,  while  it  is  not  claimed  on  behalf  of  the  defendant 
that  the  complainants  are  liable  to  account  for  monies  ac- 
tually received  by  their  testator  for  his  services  in  1850,  it  is 
contended  that  under  the  articles  of  partnership,  Dr.  Schmidt 
was  bound  to  give  his  professional  services  in  aid  of  the  part- 
nership, and  if  he  chose  to  do  nothing,  or,  if  practising, 
neglected  to  charge  for  his  services,  his  partner  should  not  be 
the  loser  by  his  indolence  or  neglect. 

"The  articles  of  partnership  are  silent  as  regards  the  ser- 
vices to  be  rendered  by  each  partner,  and  I  know  of  no 
principle  of  law  wliicli  undertakes,  when  this  is  the  case,  'to 
settle  between  the  parties  the  relative  value  of  their  unequal 


APPEALS  IN  EaUITY.  333 


Charleston,  April,  1S60. 


services  in  coiidncliiig  tlio  joint  business.'  And  the  reason 
given  for  this  not  being  attempted  is  obvious  in  this  case, 
where  'it  is  impossible  to  see  how  far  in  the  original  estimate 
of  the  parties  when  the  connection  was  formed,  the  relative 
experience,  ri^pulatioii  and  business  of  each,  entered  as  ingre- 
dients into  the  adjustment  of  the  terms  of  the  partnership.' 

"  Dr.  Fitch  paid  to  Dr.  Schujidt  $2,500  upon  the  formation 
of  their  pnrtn<Mshii>,  as  a  bonus.  WhiMi  the  connection  was 
formed  with  Dr.  Lebl)y,  he  had  but  little  practice,  while  that 
of  Dr-  Schmidt  was  large,  ami  it  does  not  appear  that  Dr. 
Lebby  paid  any  bonus.  It  is  reasonable  to  suppose  that  the 
reputation  and  l)usiness  of  Dr.  Schmidt, and  perhaps  his  pros- 
pective retirement  from  business,  were  considerations  for  Dr. 
Lebby  to  lorm  the  partnership.  The  fact  that  no  objection  is 
made  to  the  comparatively  small  sum  earned  by  Dr.  Schmidt 
($3,000)  from  Isi  February,  1851,  to  12th  June,  1852,  a  large 
portion  of  which  (as  alleged  by  the  answer)  has  never  been 
collected,  gives  countenance  to  the  opinion  that  the  |)ersonal 
services  of  Dr.  Schmidt  were  not  the  main  considerations 
which  moved  the  defendant  to  engage  in  the  partnership. 
And,  lastly,  the  articles  of  dissolution  executed  on  the  1st 
January,  1S53,  while  it  provides  that  Dr.  Lebby,  in  consider- 
ation of  the  failing  health  of  Dr.  Schmidt,  should  receive 
two-thirds  and  Dr.  Schmidt  one-third  of  the  amount  collected 
for  the  year  1852,  expressly  stipulates  that  the  proceeds  of  all 
business  of  the  partnership  for  the  two  preceding  years,  shall 
be  distributed  according  to  the  articles  of  copartnership. 

"  I  find  that  Dr.  Ilohert  Lebby  is  indebted  to  the  com- 
plainants as  executors  of  Dr.  J.  Schmidt,  in  the  sum  of  two 
thousand  seven  hundred  and  ten  dollars  and  sixteen  cents,  as 
stated  in  the  account  herewith  filed." 

The  defendant  excepted  to  the  report  : 

1.  liecause  the  said  n)aster  has  reported  a  l)alance  of 
^2,710  16,  as  due  by  this  defendant  to  the  com|»lainants 
upon  a  mutual  accounting  between  them,  when,  in  I'uct,  the 


334  APPEALS  IN  EaUlTY. 

Schmidt  vs.  Lebliy. 

complainants  have  omitted  to  account  for  the  earnings  and 
receipts  of  their  testator  for  a  period  of  more  than  one-third 
of  the  whole  copartnership,  whereas  he  ought  to  have  refused 
to  report  any  balance  against  this  defendant  until  such  ac- 
count had  been  given  by  the  complainants,  or  a  fair  allow- 
ance offered  to  be  made  by  them  upon  reasonable  grounds 
shown  by  tliem. 

2.  Because  the  said  master  had  no  right  to  infer  any  such 
condition  of  the  copartnership  as  that  suggested  in  his  report, 
namely,  that  complainants'  testator  was  not  to  be  bound  to 
practice  for  the  joint  benefit,  as  such  a  condition  would  be 
contrary  to  the  nature  of  the  copartnership  proved. 

3.  Because  even  if  there  had  been  a  condition  expressed 
in  the  articles  of  copartnership,  whereby  Dr.  Schmidt  was  at 
liberty  to  decline  practice,  yet  as  the  evidence  shows  that  he 
did  actually  practice,  and  that  for  reward  or  pay  during  the 
period  for  wliich  there  is  no  account,  the  master  should  have 
required  of  the  complainants  a  sufficient  account,  or  a  fair 
allowance  for  that  period,  before  striking  a  balance  against 
this  defendant. 

4.  Because  the  evidence  does  not  justify  the  master's  con- 
clusion, that  Dr.  Schmidt  did  not  receive  anything  for  his 
professional  services  and  practice  during  that  period,  as  the 
proof  to  the  contrary  is  full  and  conclusive,  and  as  much  as 
the  defendant  was  bound  to  offer. 

5.  Because  there  was  sufficient  evidence  before  the  master 
to  have  enabled  the  complainants  to  have  proposed,  and  the 
said  master  to  have  allowed,  or  on  the  failure  or  refusal  of  the 
complainants  to  propose,  for  the  said  n)aster  to  have  found 
and  reported  a  sum  to  be  brought  into  account  on  the  part  of 
the  complainants,  as  the  amount  of  the  earnings  of  the  said 
Dr.  Schmidt  for  the  period  alluded  to,  and  that  the  said  master 
should  so  have  found  and  reported. 

Dargan,  Ch.  I  refer  to  the  commissioner's  report  for  the 
facts  of  this  case. 


APPEALS  IN  EaUITY.  335 

Charleston,  April,  1S>60. 

I  am  with  the  defendant  in  all  liis  exceptions  ;  that  is  to 
say,  I  agree  to  all  the  propositions  asserted  therein.  By  the 
necessary  in)plication  of  the  articles  of  copartnershiii,  l)earing 
date  2d  Jannary,  1850,  it  was  stipulated  that  Dr.  Schmidt 
should  practice  medicine  in  conjunction  with  Dr.  Lcbby ; 
that  he  should  charge  those  on  wliom  he  attended  for  those 
services,  and  that  the  benefit  or  gain  of  such  practice  should 
result  to  the  copartnership  for  their  mutual  profit.  Any 
other  interpretation  than  this  would  make  the  instrument  of 
copartnership  illusory.  Dr.  Schmidt,  by  the  terms  of  his 
compact,  was  bound  to  practice  fi)r  the  benefit  of  the  firm,  and 
to  make  charges. 

When  the  partnership  was  fiirmed,  he  had  a  large  practice, 
and  an  established  reputation.  Dr.  Lebby  was  a  young  prac- ^ 
titioner  and  a  stranger  in  the  city.  He  considered  it,  therefore, 
as  conducive  to  his  interest  to  enter  into  a  copartnership  with 
Dr.  Schmidt;  in  which  the  latter  was  to  receive  three-fourths 
of  the  profits,  and  Dr.  Lebby  one-fourth.  Dr.  Schmidt  was 
a  man  far  advanced  in  life,  and  though,  at  the  time  the  part- 
nership was  formed,  he  had  a  large  practice,  and  was  able  to 
attend  to  it,  his  decadence  afterwards  was  very  rapid.  The 
partnership  was  entered  into  on  the  second  day  of  January, 
1850,  and  was  of  indefinite  duration.  For  the  first  part  of 
the  first  year,  Dr.  Schmidt  attended  to  his  professional  busi- 
ness, was  active  as  usual,  but  so  rapidly  did  his  bodily 
infirmities  grow  upon  him,  that  in  the  year  1852,  he  did  but 
little  in  the  way  of  practice  ;  nor  was  he  able.  There  was, 
by  this  time,  almost  a  total  prostration  of  body  and  mind. 
Still,  the  partnership  continued  till  the  1st  of  January,  1S53, 
when  Dr.  Schmidt  being  entirely  incompetent  for  any  busi- 
ness transactions,  some  members  of  his  family  intervened, 
and  acting  in  the  name  of  Dr.  Schmidt,  entered  into  other 
articles  with  Dr.  Lobby,  by  which  the  partnership  was  dis- 
solved, and  the  original  arlicl(\s  modified.  These  last  articles 
recite  the  fact  of  the  incapacity  of  Dr.  Schmidt,  and  the  fact 
that  the    principal   burthen   of  the  duties  of  the  partnership 


:i3f>  APPEALS  IN  EaUITY. 

'  Schmidt  vs.  Lebby. 

had  devolved  upon  Dr.  Lebby,  and  in  consideration  thereof  it 
was  agreed,  that  for  the  last  year  of  the  partnership,  (1852,) 
Dr.  Lebby  shonld  receive  two-thirds  and  Dr.  Schmidt  bnt  one- 
third  of  the  profits.  Each  of  the  parties  had  kept  books,  in 
which  tlieir  earnings  were  registered  at  the  time  when  their 
medical  services  were  rendered  ;  except  that  for  the  year  1S50, 
no  book  of  Dr.  Schmidt  was  forthcoming. 

On  the  death  of  Dr.  Schmidt,  his  will  was  admitted  to 
probate,  and  his  executors,  the  plaintiffs,  have  filed  this  bill 
for  an  account.  Bnt  before  the  fihng  of  the  bill,  they  had 
demanded  of  Dr.  Lebby  an  acconnt.  He  accordingly  stated 
an  acconnt  of  the  date  of  1st  August,  1853,  by  which  he 
acknowledges  a  balance  due  to  the  estate  of  Dr.  Schmidt  of 
$2,157  OS.  He  subsequently  rendered  another  account  of 
the  date  1st  January,  1854,  by  which  he  states  the  balance 
due  the  estate  of  Dr.  Schmidt  to  be  $2,302  32.  This  state- 
ment of  account  was  based  as  well  upon  the  books  kept  by 
Dr.  Schmidt,  so  far  as  they  were  to  be  had,  or  known  to  exist, 
as  npon  the  books  kept  by  Dr.  Lebby.  The  balance  was 
struck  without  condition  or  reservation.  No  other  books  kept 
by  Dr.  Schmidt,  than  those  used  in  making  up  this  account, 
are  known  to  exist.  Dr.  Lebby  now  resists  the  payment  of 
the  balance  thus  struck  by  liimself,  on  the  ground  that  he  is 
entitled  to  demand  an  account  of  the  representatives  of  Dr. 
Schmidt,  for  what  he  should  have  made  by  his  practice,  or 
of  which  he  did  actually  make;  or,  at  least,  he  should  have 
an  account  of  that  kind  for  the  year  1850,  when  it  does  not 
appear  that  Dr.  Schmidt  kept  any  books  at  all.  It  was  in 
evidence  that  Dr.  Schmidt  sometimes  rendered  professional 
services,  for  which  he  made  no  charge, 

Bnt  I  am  of  opinion  that  whatever  may  have  been  Dr, 
Lebby's  original  riglits  in  this  regard,  he  has  concluded  him- 
self by  the  account  which  he  has  slated;  in  which,  without 
insisting  upon  the  claim  now  set  np,  he  has  stated  an  ac- 
count, and  struck  a  balance  against  himself,  as  before  stated. 
He  did  this  deliberately,  and  with  a  knowledge  of  all  the  cir- 


APPEALS  IN  EQUITY.  :«7 

Charleston,  April,  ISfiO. 

cnmstances.  He  did  it  twice;  for  the  second  account  is  the 
same  as  the  first,  with  the  additions  of  some  further  collec- 
tions. I  do  not  perceive  any  proper  ground  upon  which  he 
can  open  this  statement,  and  surcharge  it  in  his  own  favor. 

Nor  do  I  think  that  there  is  any  ground  for  fear  that  injus- 
tice will  he  done  hy  this  view  of  the  case.  By  the  terms  of 
the  dissolution,  Dr.  Lebhy  was  allowed  two-tiiirds  for  the 
year  1852.  By  this  arrangement,  he  realized  about  $1,446 
more  than  he  would  have  done  under  the  original  agreement. 
This,  I  think,  was  a  compromise,  and  was  intended  to  cover 
all  Dr.  Schmidt's  short-comings  and  deficiencies;  and  would 
probably  have  not  been  conceded,  if  it  had  been  then  known 
or  believed  that  Dr.  Schmidt  was  to  be  called  to  a  strict  ac- 
count. This  inference  is  strongly  corroborated  by  the  fact 
that  Dr.  Lehby,  shortly  afterwards,  stated  an  account  precisely 
in  the  way  in  which  it  would  have  been  stated,  if  such  had 
been  the  understanding.  Upon  tlie  whole,  I  think  that  the 
defendant  is  concluded  by  his  own  statement,  rendered  by 
him  to  the  representatives  of  Dr.  Schmidt,  without  condition 
or  reservation.  And  I  also  think,  all  the  circumstances  con- 
sidered, this  view  fulfils  the  strict  justice  of  the  case. 

It  is  ordered  and  decreed,  that  the  defendant  pay  to  the 
comjdainant  the  sum  of  two  thousand  seven  hundred  and 
ten  dollars  and  sixteen  cents,  with  interest  from  the  first  day 
of  January,  A.  D.  1S.54. 

The  defendant  appealed,  upon  the  ground  that  his  Honor, 
the  Chancellor,  has  erred  in  supposing  that  the  agreement  of 
dissolution  of  the  partnership  was  an  adjustment  of  the  part- 
nership accounts,  and  a  discharge  of  the  testator,  or  his  exec- 
utors, Irom  liability  to  account,  or  that  tl»e  defendant's  rendi- 
tion of  his  accounts  as  a  partner  was  a  copartnership  account 
stated,  which  discharged  the  complainants  fron»  liability  to 
account  for  their  testator's  earnings  in  behalf  of  the  partner- 
shi[»,  and  for  monies  thereby  received  in  that  behalf 

McCrad}}^  Campbell,  for  appellant. 

Mcnwn'nger,  contra. 
23 


338  APPEALS  IN  EaUITY. 

Schmidt  vs.  Lebby. 

The  opinion  of  the  Court  was  delivered  by 

Wardlaw,  J.  Tlie  Chancellor  adjudges  that,  by  fair  impli- 
cation from  the  articles  of  partnership  between  the  testator  of 
plaintiffs  and  the  defendant,  testator  was  bound  by  his  con- 
tract to  practice  as  a  physician,  to  make  proper  charges  for 
his  skill  and  services,  and  to  bring  the  compensation  and 
gain  of  these  services  into  the  common  fund  for  the  advan- 
tage of  both  partners.  Indeed,  he  adjudges  in  favor  of  the 
defendant  all  the  propositions  affirmed  in  his  exceptions  ; 
and  to  this  extent  his  opinion  is  uncontroverted  and  incon- 
trovertible. It  is  of  the  very  nature  and  essence  of  a  part- 
nership, that  each  partner  shall  exert  due  diligence  and  skill, 
and  devote  his  services  and  labors  for  the  promotion  of  the 
common  benefit  of  the  concern,  at  such  rate  of  compensation 
as  may  be  stipulated  ;  and  that  he  shall  not  divert  from  the 
business  of  the  firm  that  portion  of  diligence  and  skill  he  is 
bound  to  employ,  nor  engage  in  other  business  adverse  to 
the  common  benefit.  Sto.  Part.,  174-185.  The  partners  are 
pledged  to  each  other  that  the  business  shall  be  so  conducted 
that  each  njay  see  that  it  is  proceeding  prosperously,  and  not 
injuriously,  to  the  common  interest;  and,  as  Judge  Story 
says,  sec.  181,  each  partner  should  keep  precise  accounts  of 
all  his  own  transactions  for  the  firm,  and  have  them  always 
ready  for  inspection  and  explanation  ;  if  he  receives  any 
money  for  the  firm  he  ought,  at  once,  to  enter  the  receipt  in 
the  books  of  the  firm,  so  that  it  may  be  open  to  the  inspec- 
tion of  all  the  partners.  The  testator  of  plaintiffs,  while 
apparently  in  good  health  and  full  practice,  from  the  begin- 
ning of  the  partnership,  in  January,  1850,  until  February, 
1851,  has  rendered  no  account  of  his  services  and  gains 
whatsoever,  although,  in  the  opinion  of  Dr.  Fitch,  he  should 
have  made  twice  as  much  as  the  defendant;  and,  although 
testator  did  enter  charges  in  the  books  of  the  firm  to  the 
amount  of  $3,000  for  subsequent  services.  In  the  course  of 
the  year  1852,  the  body  and  mind  of  testator  greatly  failed, 
and  the  present  plaintiffs  intervening  in  his  behalf,  the  part- 


APPEALS  IN  EaUITY.  'Mi9 

Charleston,  April,  1800. 

nership  was  dissolved  January  2,  18.03,  and  the  proportion  of 
defendant  in  the  profits  of  1852  was  extended  largely  heyond 
his  prof)ortion  as  stipulated  in  the  original  articles.  The  con- 
sideration ex|)ressed  for  this  change  in  favor  of  defendant  \v;is 
"justice''  to  the  defendant  from  tjie  condition  of  Dr.  Schmidt's 
health  in  1852,  in  consequence  of  which  the  "larger  part" — 
it  is  not  said  tlie  whole — of  the  jiractice  of  the  office  had 
devolved  on  the  defendant.  It  was  stipulated  in  the  articles 
of  dissolution  that  defendant  "  will  attend  to  the  making  out 
and  collection  of  the  hills  and  dehts  due,  and  final  closing  up 
of  the  business  of  said  partnership,  distributing  proceeds  as 
collected,  in  accordance  to  the  articles  of  copartnersliip  up 
to  January  J,  1852,  and  for  that  year,''  as  therein  stipulated. 
Testator  died  in  the  former  part  of  the  year  1853;  and  after- 
wards defendant  rendered  an  account  of  his  receipts  and  dis- 
bursements, with  the  caption:  "  Dr.  J.  W,  Schmidt,  in  account 
with  Dr.  R.  Lebby,  in  liquidation  of  late  firm  of  Schmidt  & 
Lehby,"  closing  with  the  entry:  "•  1853,  Aug.  1.  Jialance  due 
estate  of  J.  W.  Schmidt,  $2,157  08."  He  also  rendered  a 
second  account  for  1853,  with  the  caption:  "Estate  of  Dr.  J. 
W.  Schmidt  in  account  with  Dr.  Robert  Lebby  in  liquida- 
tion ;"  by  which,  after  bringing  in  the  former  balance,  he 
states,  as  of  the  date  of  December  31,  1853,  "  Balance  of 
account  to  credit  of  Dr.  S.  to  date,  $2,302  32."  In  this  con- 
dition of  things,  the  bill  was  filed  March  4,  1856,  praying 
that  defendant  should  pay  to  the  said  i)laintifrs  "  the  said 
balance  of  $2,302  32,  and  account  to  them  for  amounts 
received  by  liim  on  account  of  the  said  partnership  since 
January  1,  1854,"  and  for  general  relief  The  defendant,  in 
his  atiswcr,  filed  May  14,  1856,  admits  that  he  rendered 
accounts  exhibiting  a  balance  in  his  hands  from  his  transac- 
tions for  the  firm  of  $2,302  52;  but  he  stales  that  no  account 
whatever  has  been  rendered  by  Dr.  Schmidt  or  his  represent- 
atives of  testator's  transactions  in  the  business  of  the  firm  for 
the  first  thirteen  months  of  the  partnership,  and  he  claims  to 
retain  the  sum   in   his  hands  until   the  plaiiitifls  shall  so  ac- 


340  APPEALS  IN   EaUITY. 

Schmidt  vs.  Lel)l)y. 

count;  and  swears  to  his  belief  that  if  such  account  were 
fully  and  fairly  stated,  little  or  nothing  would  be  left  due  by 
him.  After  answer,  defendant  filed  a  third  account,  headed: 
"  Estate  of  J.  W.  Schmidt  in  account  with  Robert  Lebby,"' 
and  closing:  "  1856,  June  1,  by  balance  to  credit  (of  plain- 
tiffs) brought  down,  $407  84."  All  the  items  in  all  of  the 
accounts  seem  to  be  derived  from  the  books  kept  by  defend- 
ant, and  the  single  book  kept  by  Dr.  Schmidt,  beginning  in 
February,  1851  ;  and  no  full  adjustment  from  all  sources  is 
professed.  The  Chancellor  rejected  the  defendant's  claim  for 
an  account  from  the  representatives  of  his  partner,  on  the 
ground  that  defendant  had  "concluded  himself  by  the  ac- 
count he  has  stated."  The  defendant  appeals  for  supposed 
error  in  this  respect. 

The  defendant  does  not  seek  to  surcharge  or  falsify  the 
accounts  he  has  rendered;  on  the  contrary,  ailirms  their 
accuracy:  but  he  denies  that  they  exceed  a  statement  of  his 
own  transactions  and  of  such  of. Dr.  Schmidt's  as  are  found 
in  one  incomplete  book,  and  that  they  amount,  in  any  j)roper 
sense,  to  an  account  stated.  We  do  not  perceive,  in  tlie 
lights  afforded  to  us,  that  these  accounts  are  not  exactly  such 
in  form  and  in  substance  as  the  defendant  should  have  ren- 
dered, in  case  Dr.  Schmidt  or  his  representatives  had  rendered 
likewise  full  accounts  as  to  his  transactions  concerning  the 
partnership;  nor  that  tliey  were  final;  for  defendant  may 
have  made  subsequent  collections,  and  consequently  we 
do  not  find  the  evidence  that  they  were  intended  to  bar  or 
waive  an  accounting  from  the  other  side.  In  bills  for 
account,  it  is  usually  necessary  to  give  jurisdiction  to  the 
Court  of  Equity,  that  there  should  be  debits  and  credits,  or 
one  of  them,  on  both  sides;  and  in  such  suits  the  defendant 
is  as  much  an  actor  as  the  })laintitf,  and  entitled  to  equal 
remedy  and  relief  Cross  bills  in  such  cases  are  very  rare, 
unless  the  defendant  seek  discovery  from  the  plaintiff  as  to 
matters  not  suggested  in  the  bill  or  insusceptible  of  proof 
aliunde.     The  plaintiff  is  entitled  to  an  account  current  from 


APPEALS  IN  EaUlTY.  :i4I 

Chnrlesion,  April,  1860. 

the  defendant,  sustained  by  oath,  and  the  defendant  ought  to 
be  in  no  worse  position  in  regard  to  the  phiintilf.  In  this  case, 
the  master  reports  that  j)laintitls  "  allege  that  they  have  no 
account  of  the  professional  business  of  their  testator  during 
his  conneclion  with  Dr.  Lebby ;"  but  this  is  probably  an 
unsworn  defence  made  tlirongli  counsel,  and  may  be  for- 
mally true,  although  they  have,  or  might  obtain,  full  inform- 
ation and  belief  as  to  the  extent  and  value  of  his  services. 
The  defendant  has  made  a  pi'iuia  facie  showing  that  Dr. 
Schmidt  bestowed  valuable  services  in  the  joint  business,  in 
the  year  1S50  and  early  i)art  of  1851,  and  the  plaintiffs 
should  not  be  excused  from  all  liability  by  reason  of  vague 
allegations  or  defective  information  on  their  part. 

An  account  stated,  in  its  proper  meaning,  implies  a  mutual 
accounting,  and  striking  a  balance,  acknowledged  on  one 
side  and  accepted  by  the  other.  Sto.  Eq.  PL,  798;  Sto.  E.  J., 
523,  526.  Between  partners,  where  there  have  been  dissolu- 
tion of  the  partnership  and  an  adjustment  of  their  affairs, 
showing  that  the  concern  was  unprofitable,  and  that  nothing 
was  due  from  one  partner  to  the  other,  but  that  their  debts 
to  creditors  were  payable  by  the  |)artners  in  unequal  portions, 
and  such  actual  payment  to  creditors  has  been  made — these 
circumstances  are  equivalent  to  an  account  stated.  Such  was 
our  case  of  Main  vs.  Howland,  Rich.  Eq.  Ca.,  352.  This 
matter  of  account  stated  is  frequently  pleaded  by  defendants 
in  bar  of  further  accounting,  but  it  would  be  difficult  to  find 
a  sound  precedent  for  a  plaintiff  to  employ  it  as  ground  for 
recovering  a  specific  sum  in  equity.  If  he  be  really  entitled, 
for  such  reason,  to  a  certain  sum,  his  ajipropriate  remedy  is 
at  law  by  action  of  assumpsit.  The  plaintilfs  in  this  case 
do  not  set  up,  in  their  bill,  an  account  stated  with  any  strict- 
ness of  averment;  and  they  certainly  claim  a  further  account 
from  defendant;  and  it  is  not  of  regular  procedure  to  do  both 
in  the  same  suit,  and  still  bar  the  defendant  from  any  counter 
claim. 

Courts  of  Equity  wisely  foster  the  private  adjustment  and 


842  APPEALS  IN  EaUlTY. 

Schtiiidl  vs.  Lehl)y. 

settlement  of  disputed  claims,  but  it  is  very  unsafe  to  con- 
jecture compromises  without  adequate  proof.  We  do  not  see 
in  tile  agreements  for  formation  or  dissolution  of  the  partner- 
ship or  elsewhere,  satisfactory  evidence  tliat  defendant  has 
abandoned  or  waived,  to  any  extent,  or  in  any  respect,  the 
rights  afforded  to  liini  by  the  law.  It  may  be,  as  the  master 
and  Chancellor  suppose,  that  by  some  process  of  irregular 
justice  the  defendant  has  obtained  all  the  profit  from  this 
partnership  that  he  is  entitled  to  receive;  but  as  ministers  of 
the  law,  we  think  the  defendant  has  the  strict  right  to  have 
the  result  ascertained  by  a  regular  procedure.  We  are  aware 
that  the  master  may  have  difficulty  in  attaining  precise  results 
in  this  case,  but  we  trust  that  an  approximation  is  at  least 
probable. 

It  is  ordered  and  decreed,  that  tlie  circuit  decree  be  set 
aside,  and  that  the  matters  of  account  be  recommitted  to  the 
master. 

Johnstone,  J.,  concurred. 

O'Nkall,  C.  J.,  dissenting,  said:  I  think  the  master  and 
the  Chancellor  took  the  right  view  of  the  case.  The  ac- 
counts made  up  by  the  defendant  is  plainly  an  account 
stated,  in  which  the  balances  struck  are  in  favor  of  the 
deceased.  If  the  suit  was  at  law,  the  defendant  would  be 
concluded,  unless  error  could  be  shewn.  The  same  rule,  I 
apprehend,  prevails  in  equity.  For  equity  is  bound  to  fol- 
low, and  obey  the  law. 

This  is  not  disputed,  I  am  told,  by  the  majority,  but  they 
think  it  is  not  an  account  stated.  Why?  It  is  a  statement 
of  mutual  accounts:  that  makes  it  an  account  stated.  But 
it  is  supposed  that  Dr.  Schmidt's  accounts  of  his  operations, 
as  a  partner,  are  not  brought  in.  How  does  that  appear? 
Certainly  not  from  the  account. 

In  1853,  the  defendant,  and  the  children  of  Dr.  Schmidt, 
dissolved  the  partnership,  and  in  the  deed  drawn  up  on  that 


APPEALS  IN  EQUITY.  •     343 

Charleston,  April,  ISOO. 

occasion,  it  is  stated  that  Dr.  Schmidt,  during  the  year  1S52, 
was  incapacitated  by  disease  from  attending  to  practice,  and, 
therefore,  it  was  agreed  that  Dr.  Lebby  should  take,  of  the 
profits  of  1852,  two-thirds,  and  Dr.  Schmidt  one-third.  The 
accounts  were  made  up,  acccording  to  this,  by  Dr.  Lebby,  on 
the  9th  June,  1S56,  admitting  the  balances  due  Dr.  Schmidt 
December  31,  1853,  $2,302  32,  and  June  1,  1856,  $407  84, 
making  an  aggregate  of  $2,710  16.  These  are  plain  admis- 
sions of  indebtedness  to  that  amount,  as  a  partner.  I  have 
seen  no  evidence  of  any  n)istake  in  the  accounts. 

The  defendant  contends  that  Dr.  Schmidt  has  not  account- 
ed for  what  he  did  as  a  partner.  There  is  no  doubt,  if  he 
made  anything,  it  should  have  been  brought  into  the  ac- 
counts between  them,  before  a  balance  was  struck.  A  part 
only,  it  is  alleged,  was  brought  in,  and  now  it  is  contended 
that  Dr.  Schmidt  should  be  charged  further.  Striking  a  bal- 
ance, it  seems  to  me,  concedes  that  everything  is  accounted 
for. 

The  master  and  the  Chancellor  are  the  judges  of  the  dis- 
puted facts;  they  hold  there  was  no  evidence  that  Dr.  Schmidt 
made  anything  beyond  what  is  accounted  for.  IIow  can  we 
say  otherwise  ? 

The  compromise,  by  which  the  defendant  took  a  larger 
interest  for  1852,  and  the  accounts  made  up  under  it,  satisfy 
me  that  the  defendant  is  properly  charged.  I  am,  therefore, 
for  alfirming  Chancellor  Dargan's  decree. 

Decree  set  aside. 


344     •  APPEALS  IN  EQUITY. 


State  Bank  vs.  Cox  &  Co. 


The  State  Bank  of  South  Carolina  vs.  Hermann  Cox  & 

Co.   AND    OTHERS. 

Principal  and  Agent — Power  of  Jittorney — Bank  Stock — 

Sale. 

S.  befng  the  owner  of  certain  shares  in  the  stock  of  the  State  Bank,  which,  by 
the  usage  of  the  bank,  could  be  transferred  only  by  entry  in  the  l>ooks  of  the 
bank,  delivered  her  certificate  of  stock  to  her  attorney  B.,  with  a  blank  power 
of  attorney,  authorizing  a  sale  of  the  stock.  B.  borrowed  money  for  his  own 
use  from  C,  and  to  secure  the  payment  transferred  to  him  the  certificate  and 
power  of  attorney:  Held,  that  the  transfer  to  C,  who  acted  bona  fide,  and 
without  notice  ot  S.'s  title,  was  valid. 

BEFORE  DARGAN,  CH.,  AT  CHARLESTON,  FEBRUARY,  1S5S. 

This  case  will  be  understood  from  the  circuit  decree. 

Dargan,  Ch.  Madame  Leopoldine  Szemere,  nee  Turko- 
vics,  a  Hungarian  lady,  residing  in  Paris,  wife  of  liarthelemy 
Szemere,  became  the  owner,  by  purchase,  of  fifty  shares  in 
the  State  Bank  of  South  Carolina,  in  Charleston  ;  which 
shares  were  transferred  upon  the  books  of  the  bank,  accord- 
ing to  the  custom  of  that  institution.  Afterwards,  the  bank 
issued  a  new  certificate  of  stock  to  her  for  the  fifty  shares,  in 
the  following  form  : 

"South  Carolina, No.  5,600. 

"  This  certifies  that  Madame  Leopoldine  Szemere,  nee  de 
Turkovics,  Paris,  is  entitled  to  fifty  shares  in  the  State  Bank, 
transferable  only  at  the  bank,  by  the  said  Madame  Leo- 
poldine Szemere,  nee  de  Turkovics,  personally,  or  by  her 
attorney, 

"Witness  the  seal  of  the  Company,  and  the  signature  of 
the  President,  at  Charleston,  this  tenth  day  of  July,  1852. 
(Signed)  EDWARD  SEBRING." 


APPEALS  IN  EaUITY.  345 

Cliarleston,  April,  ISCJO. 

Upon  this  stock,  Madame  Szernere,  by  attorney,  received 
the  dividends  to  the  ISth  January,  1856. 

One  John  Boldin,  a  merchant  in  Paris,  dealing  in  cotton, 
was  Madame's  agent,  in  that  city.  The  said  certificate  of 
stock,  with  a  power  of  attorney,  were  delivered  by  Madame 
Szeniere  to  said  Boldin,  for  the  purpose,  as  she  says,  of  being 
transferred  by  him  to  one  II.  W.  Kulitmann,  of  Charleston, 
to  enable  him  to  receive  the  dividends  for  her.  Kulitmann 
wan  her  agent  in  Charleston,  and  did  receive  the  dividends 
from  1852  to  1855,  inclusive.  It  does  not  appear  that  Kuht- 
luann  was  ever  in  possession  of  the  certificate  of  slock,  or  of 
the  power  of  attorney,  delivered  to  Boldin  ;  though  Kuht- 
mann  acted  under  another  power  to  him  by  name,  bearing 
date  6lh  April,  1852.  The  power  of  attorney  delivered  to 
Boldin,  is  in  words  as  follows: 

"  Know  all  men  by  these  presents,  that  I,  Leopoidine  Sze- 
rnere, nee  de  Turkovics,  do  hereby  make,  ordain,  constitute 
and  appoint  for  true  and  lawful  attorn  for 

and   in  name,  to  transfer  one  certificate,  No.  5,600,  dated 

lOth  July,  1852,  of  the  South  Carolina  State  Bank,  for  fifty 
shares  inscribed  in  my  name  on  the  books  of  said  bank;  and 
to  make  and  execute  all  necessary  acts  of  assignment  and 
transfer  thereof,  with   j)ower  to  the  said   attorn  to  substi- 

tute an  attorney,  or  attornies,  under  for  all  or  any  of  the 

purposes  aforesaid,  and  to  do  all  lawful  acts  re([uisite  for 
clfecting  (he  premises,  hereby  ratifying  and  confirming  all 
that  the  said  attorney,  or  substitute,  shall  do  therein  by  vir- 
tue of  these  presents. 

"  In  witness  whereof         have  hereunto  set  hand  and 

seal  the  eleventh  day  of  November,  in  the  year  of  our  Lord 
one  thousand  eight  hundred  and  fifty-two. 

"Signed,  sealed  and  delivered  in  the  presence  of  us, 
(Signed)         J^eopoldine  Szemere,  nee  de  Turkovics, 

"Approved,        Barthrlemy  Szemere,"    [l.  s.] 


3*6  APPEALS  IN  EaUITY. 

State  Bank  vs.  Cox  &  Co. 

Indorsed  upon  the  power  of  attornr^y,  is  the  following  cer- 
tificate : 

"Be  it  known,  that  on  the  eleventh  day  of  Novemher,  one 
thousand  eight  hundred  and  fifty-two,  before  me,  S.  G.  Good- 
rich, consul  of  the  United  States  of  America,  at  Paris,  per- 
sonally appeared  Leopoldiue  Szemere,  nee  Turkovics,  known 
to  me  to  be  the  constituent  named  in  the  foregoing  letter  of 
attorney,  and  acknowleged  the  said  letter  of  attorney  to  be 
her  free  act  and  deed.  In  testimony  whereof,  I  have  here- 
unto set  my  hand  seal. 

(Signed)  S.  G.  GOODRICH,  U.  S.  Consul." 

The  said  Boldin  being  in  possession  of  the  said  certificate 
of  stock,  and  the  power  of  attorney  of  the  11th  November, 
1S52,  opened  a  negotiation  with  Hermann  Cox  &  Company, 
commission  merchants  in  the  City  of  London,  in  which, 
claiming  to  be  the  owner  of  the  stock,  he  proposed  to  them 
to  make  him  certain  advances  of  money,  upon  the  pledge  or 
hypothecation  of  the  stock.  Having  agreed  to  his  proposals, 
Boldin  forwarded  to  the  said  Hermann  Cox  &  Company,  the 
certificate  of  stock  and  the  said  power  of  attorney;  where- 
upon they  accepted  his  three  several  drafts  at  three  months, 
for  ^400,  £240,  and  £l69  10s.  By  their  agent  in  Charles- 
ton, tliey  have  sold  the  said  bank  shares,  and  the  proceeds 
have  come  into  their  hands.  From  the  allegations  of  Mad- 
ame Szemere's  answer,  it  appears  that  Boldin  has  committed 
a  breach  of  trust,  and  has  not  accounted  to  her  for  the  pro- 
ceeds of  the  sale  of  the  stock  ;  and  has  become  a  bankrupt, 
with  a  total  loss  of  character.  Under  these  circumstances, 
there  are  two  adverse  claimants  of  the  ownership  of  the 
stock:  Hermann  Cox  &  Company,  by  virtue  of  their  pur- 
chase from  Boldin,  and  Madame  Szemere,  on  the  ground 
that  Boldin  was  without  authority  to  sell,  and  that  the  sale 
by  him  to  Hermann  Cox  &  Company  was,  on  various 
grounds,  null  and  void,  as  against  her.  The  bank,  not 
knowing  with  which   party  to  deal  as  the  true  owner,  has 


APPEALS  IN  EaUITY.  %47 

Charlef'toii.  April,  18C0. 

interpleaded  them  by  this  bill,  and  called  them  into  this 
Court,  with  the  view  of  having  their  rights  adjudicated.  To 
the  bill,  each  party  has  filed  an  answer,  setting  forth  the 
grounds  of  her  and  their  claims.  In  a  bill  of  interpleader, 
the  answer  of  a  defendant  cannot  be  evidence  in  his  favor, 
against  the  other  defendant,  with  whom  he  has  been  inter- 
pleaded. As  to  evidence,  therefore,  the  case  must  be  tried  on 
the  undisputed,  or  authentic  facts  of  the  case,  as  they  have 
been  developed  in  the  progress  of  the  cause. 

The  defendants,  the  Szemeres,  do  not  deny  the  delivery  by 
them  to  Boldin,  of  the  power  of  attorney,  with  the  oriuinal 
certificate  of  stock,  but  they  deny  that  this  was  done  for  the 
purpose  of  clothing  him  with  the  power  to  sell  the  stock,  and 
aver  that  it  was,  "  upon  the  special  trust  and  confidence,  and 
with  the  express  authority  and  instruction  that  they  (the  cer- 
tificate and  power)  should  be  transmitted  by  the  said  Boldin 
to  a  certain  H.  W.  Kulitmann,in  Clurleston,  South  Carolina, 
for  the  purpose  of  collecting  the  dividends  on  the  said 
shares."  Here  is,  indeed,  a  seeming  inconsistency.  Kuht- 
mann  had  already  a  formal  power  of  attorney  of  (Hh  Ai)ril, 
1S52,  to  him  by  name,  (and  not  in  blank  as  to  the  name,  as 
was  the  case  in  that  of  the  Ilth  Nov.,  1852,)  under  which  he 
(Kuhtmann)  had  received  the  dividends  due  on  the  2d  July, 
1852.  For  what  end  could  another  power  be  given  ?  Or 
why  send  the  certificate  of  stock,  when  the  power  which 
he  already  had,  was  sufficient  to  enable  him  to  receive  the 
dividends  ? 

In  tlie  argument  at  the  trial,  there  was  much  discussion  on 
the  question,  whetlier  certificates  of  bank  stock  were  trans- 
ferable by  delivery.  Much  can  be  said  in  favor  of  such  a 
rule,  founded  upon  the  convenience  and  customs  of  com- 
merce. I  incline  to  think  that  the  preponderance  of  au- 
thority, as  well  as  reason,  is  in  favor  of  the  affirmative  of  the 
proposition.  In  this  particular  certificate  of  stock,  (as  all 
others  that  are  issued  by  this  bank,)  there  is  a  condition 
expressed,  that  it  was  "  transferable  only  at  the  bank."     The 


348  APPEALS  IN  EaUlTY. 

State  Bank  vs.  Cox  &■  Co. 

charter  of  the  State  Bank,  S  Stat.,  10,  contained  no  provision 
for  the  transfer  of  stock,  but  in  sec.  17,  declared  that  "  the 
stock  of  the  bank  shall  be  assignable  and  transferable  accord- 
ing to  such  regulations  as  may  be  instituted  in  tliat  behalf  by 
the  directors."  The  president,  (Mr.  Edward  Sebring,)  who 
was  examined  as  a  witness,  said,  that  so  far  as  he  knows, 
there  is  no  rule,  regulation,  or  by-law  on  the  records  or 
journal  of  the  bank,  by  which  the  form  or  manner  of  trans- 
ferring stock  is  governed  ;  but  from  the  time  he  has  been  con- 
nected with  the  institution,  the  form  of  language  in  which 
this  certificate  is  couched  has  been  used,  and  that  they  keep 
a  transt'er  book,  in  which  all  transfers  and  assignments  of 
stock  are  made  by  the  parties  themselves,  or  their  attornies. 
But  I  apprehend  that  regulations  of  this  kind,  even  when 
they  are  introduced  into  the  bank  charters,  are  intended  for 
the  convenience,  protection  and  security  of  the  banks  them- 
selves. It  is  to  give  the  bank  notice  and  information  as  to 
who  are  the  stockholders.  If  the  purchaser  of  a  certificate 
of  stock  with  such  a  provision  upon  its  face,  should  not  have 
it  transferred  or  assigned  to  him  at  the  bank,  and  upon  the 
books  of  the  bank,  according  to  the  regulation,  he  could  not 
complain,  if  the  bank  should  regard  the  original  stockholder 
as  the  true  owner,  pay  the  dividends  to  him,  and  otherwise 
deal  with  him  as  still  the  owner.  But  as  between  other  con- 
tracting parties,  the  rule  is,  must  be,  different.  And  I  think  I 
may  say,  without  the  fear  of  contradiction,  that  the  transfer  of 
stock  by  the  owner,  though  not  in  accordance  with  the  form 
prescribed  by  the  charter,  or  the  by-laws,  will  pass  all  the 
right  of  the  shareholder,  in  equity,  if  not  in  law.  Bank  stock 
is  property,  and  there  is, and  can  be  (reasonably)  no  inhibition 
in  the  general  law  of  the  land  against  its  transfer,  as  other 
incorporeal  chattels  are  transferred.  The  condition,  then,  in 
the  certificate,  that  it  was  transferable  only  at  the  bank,  &c,, 
I  do  not  think  can  aftect,  much  less  conclude  this  question. 
Upon  the  question,  whether  certificates  of  bank  stock  are 
transferable  by  delivery  sim[)ly,  I  incline  to  think,  as  I  have 


APPEALS  IN  EaUITY.  349 

Charle^ston,  April,  1800. 

intimated,  that  the  prepoi)derance  of  authority  and  argument 
is  witli  tlie  affirmative.  But  I  do  not  affect  to  have  arrived  at 
a  clear  and  assured  conclusion  as  to  this  i)oint,  and  do  not 
wish  to  predicate  judgment  on  this  principle.  I  wish  to  rest 
it  ui)on  other  grounds,  upon  wliicli  I  can  rely  with  greater 
confulence. 

Madame  Szemere  admits  in  her  answer,  that  she  delivered 
the  power  of  attorney  and  the  original  certificate  of  stock  to 
Boldin;  not,  as  she  says,  for  the  piirjiose  of  authorizing  him 
to  sell  liie  stock,  or  to  do  any  act  in  relation  to  the  same, 
except  simply  to  transmit  the  power  and  the  certificate  to  H, 
W.  Kuhtmann,  in  Charleston,  South  Carolina,  to  enable  hiin 
to  collect  the  dividends  for  her.  I  have  already  commented 
upon  the  absurdity  of  this  statement,  by  referring  to  the  fact, 
that  she  had  already,  on  the  6th  April,  1852,  execute^l  and 
delivered  to  Kuhtmann,  a  power  to  receive  iIk;  dividends  ; 
under  which  he  had,  at  the  time  of  the  execution  of  the 
power  to  Boldin,  received  one  installmeni  of  uividends. 
Whatever  may  have  been  the  motive  for  the  delivery  of  the 
certificate  of  stock  and  the  j)ower  of  attorney  to  Boldin,  she 
invested  him  thereby,  with  all  the  indicia  of  properly  and 
ownership  as  to  said  shares  of  stock,  and  if  he  abused  her 
confidence,  she  must  bear  the  conseqnences.  From  the  fact 
that  she  received  the  dividends  up  to  January,  1S56,  it  is,  I 
think,  fairly  to  be  inferred  that  Madame  Szemere  continued 
to  be  the  owner  of  the  stock,  notwithstanding  the  delivery  of 
the  certificate  and  power  to  Boldin.  Bnt  for  this  fact,  and  the 
inference  from  it,  her  continued  ownershiji  would  not  be 
proved,  except  by  her  own  statement,  and  it  would  not  ap- 
pear but  that  Boldin  was  the  assignee,  as  the  transaction 
with  him  would  import.  I  shall  assume  in  all  that  I  have  to 
say  in  this  judgment,  that  Madame  Szemere  continued  to  be 
the  true  owner  of  the  stock,  and  that  Boldin  committed  a 
fraud  in  disposing  of  the  same  as  his  own  property. 

Kuhtmann,  her  agent  in  Charleston, already  having  a  formal 
and  sulRcient  power,  under  which  he  was  successfully  acting 


350  APPEALS  IN  EaUITY. 

State  Bank  vs.  Cox  &  Co. 

in  the  collection  of  the  dividends,  I  can  conceive  of  no 
motive  for  the  delivery  of  the  certificate  and  the  j^ower  to 
Boldin,  except  it  was  to  enable  him,  at  his  own  discretion,  to 
effect  a  sale  for  her  benefit.  Bnt  the  motive  is  immaterial. 
She  held  him  out  to  the  world  as  the  j)roprietur.  The  evi- 
dence is  plenary  that,  according  to  commercial  nsage,  this 
possession  of  the  certificate  and  a  power  of  attorney  in  this 
form,  imported  ownership.  Hermann  Cox  &  Company  conld 
not  know  the  secret  trusts  and  equities  that  subsisted  between 
Madame  Szemere  and  Boldin.  She  armed  him  with  the 
le?al  title  to  go  forth  and  sell  the  stock  for  her;  he  went  forth 
and  sold  for  his  own  benefit,  and  put  the  proceeds  in  his  own 
pocket.  There  is  no  doctrine  of  equity  jurisprudence  better 
supported  by  reason,  as  well  as  authority,  than  this  :  that 
where  one  or  two  innocent  persons  must  sufi:er  loss,  it  must 
fall  on  the  party  who,  by  incautious  and  misplaced  confi- 
dence, has  occasioned  it,  or  placed  it  in  the  power  of  a 
third  party  to  perpetrate  the  fraud  by  which  the  loss  has 
happened. 

But  let  us  look  at  the  transaction  in  another  light.  Sup- 
pose that  the  possession  by  Boldin  of  the  original  certificate, 
and  a  power  of  attorney  in  this  form,  did  not  imply  an  owner- 
ship by  him  of  the  stock  ?  What  then  ?  He  was  then  her 
authorized  agent  to  sell  the  stock.  It  is  vain  for  Madama 
Szemere  to  say,  that  he  was  not  to  sell  under  the  power,  but 
to  transmit  it  to  Kahtmaim.  If  that  be  true,  it  was  a  secret 
arrangement  between  them,  and  not  binding  upon  third 
parties.  It  is  equally  vain  to  say,  that  the  language  of  the 
power  conveys  no  authority  to  sell.  In  the  plainest  language 
it  invested  him  with  the  power  "  to  transfer"  •'  the  fifty  shares 
of  stock,  and  to  make  and  execute  all  necessary  acts  of  as- 
signment and  transfer  thereof,"  &c.  She  clothed  him  with 
the  power  to  sell;  whether  wisely  or  not,  is  immaterial.  In 
pursuance  of  the  power,  he  did  sell.  The  breach  of  trust  did 
not  consist  in  the  act  of  selling,  but  in  not  accounting. 
Whether  Madame  Szemere  had  a  good  title  to  the  shares  of 


APPEALS  IN  EaUITY.  851 

Charleston,  April,  1860. 

Stock,  and  Boldin  a  valid  power  to  convey  lier  title,  it  con- 
cerned the  pnrcliaser  to  know.  But  whether  Boldin  account- 
ed for  the  proceeds  to  his  principal,  was  no  concern  of  the 
purchaser.  It  has  not  been  made  to  appear,  except  hy  Mr. 
and  Mrs.  Szemere's  own  statement,  tliat  Tioldin  has  embez- 
zled or  misappropriated  the  proceeds  of  the  sale.  15nt,  ad- 
mitting that  he  has,  and.  admitting  further,  that,  by  a  parol 
reservation,  he  was  not  to  sell  under  the  power,  it  was  Mad- 
ame Szemere  who  put  it  into  his  power  to  commit  the  fraud. 
(See  1  Dong.,  529  ;  Code  Nap.,  lex  IncL  Story  Conflict.  Laws, 
3S4.)  There  was  nothing  of  a  suspicious  nature  in  the  trans- 
action, (according  to  the  evidence,)  except  the  lapse  of  linie, 
from  the  execution  of  the  j)ower,  and  the  offer  to  sell  to 
Hermann  Cox  &  Company.  This,  and  nothing  else,  (the 
witnesses,  persons  dealing  in  slocks,  said,)  was  calculated  to 
awaken  suspicion.  But,  considering  Boldin  as  the  owner,  I 
cannot  see  how  that  circumstance  was  calculated  to  excite 
suspicion.  If  it  was  considered  as  Boldin's  stock,  the  pos- 
session of  the  certificate,  and  the  power,  constituted  the 
evidence  of  his  title.  Considering  him  as  a  mere  agent  to 
sell,  there  was  no  limitation  in  liis  power,  either  as  to  time, 
price,  or  any  other  terms.  It  was  as  good  a  power  then  as  it 
was  when  first  executed.  It  only  behooved  the  purchaser  to 
inquire  if  the  principal  was  still  living,  and  the  power  not 
being  limited  as  to  time,  and  remaining  unrevoked,  its  etli- 
cacy  remained  unimpaired. 

It  was  argued  that  Madame  Szemere  was  a  resident  of 
France,  and  that  as  personal  property  had  no  locality,  and 
was  attendant  upon  the  person,  tlie  transfer  should  have 
lieen  made  according  to  the  law  of  the  dornicil.  Two 
French  advocates,  living  in  Paris,  were  examined  by  coui- 
mission  as  to  what  form  was  required  by  the  French  law  for 
the  transfer  of  such  property,  or  rather  their  of)inion  was 
sought  as  to  the  nianner  in  which  this  particular  case  should 
be  decided.  'I'he  case  was  subiuitted  to  them  for  their  opin- 
ion, which  was  very  frankly  and  decidedly  given  in  favor  of 


332  APPEALS  IN  EaUlTY. 

State  Bank  vs.  Cox  &;  Co. 

Madame  Szetnere.  Such  an  opinion,  or  judgment,  of  course, 
cannot  be  decisive  here.  But  when  a  general  or  abstract 
principle  of  foreign  law  has,  or  is  supposed  to  have,  a  bear- 
ing upon  a  judicial  question  pending  in  our  courts,  it  is  com- 
petent, in  this  way,  to  seek  information  as  to  such  principle 
of  foreign  jurisprudence.  In  this  point  of  view,  a  portion  of 
these  depositions  is  competent  evidence.  It  was  shown  by 
these  advocates,  in  their  depositions,  that  this  transfer  by 
Madame  Szemere,  in  the  form  and  manner  in  which  it  was 
made,  would  be  invalid,  and  ineffectual  to  transfer  the  stock, 
under  the  provisions  of  the  Code  Napoleo7i. 

The  fallacy  of  this  argument  consists  in  the  assumption 
that  the  assignment,  though  not  good  under  the  Code  Napo- 
leon, would  not  be  good  if  made  according  to  the  lex  loci 
sitae.  The  general  rule,  that  the  laws  of  the  owner's  domicil 
should,  in  all  cases,  determine  the  validity  of  every  transfer 
of  personal  property  made  by  the  owner,  is  subject  to  some 
exceptions.  One  exception  is,  where  tiie  lex  loci  sitae  pre- 
scribes some  particular  form  of  assignment  or  transfer; 
another  exception  is,  where,  from  the  nature  of  the  particular 
property,  it  has  a  necessarily  implied  locality.  "In  Robinson 
vs.  Bland,  2  Bur.,  1079,  Lord  Mansfield  has  mentioned, 
as  among  the  latter  class,  contracts  respecting  the  public 
funds  or  stocks,  the  local  nature  of  which  requires  them 
to  be  carried  into  execution  according  to  the  local  law." 
And  Justice  Story,  in  commenting  upon  the  rule,  (De  Con- 
flictu  Legum,  ch.  19,  sec.  363,  383,)  says:  "the  same  rule 
may  properly  apply  to  all  other  stocks  or  funds,  although  of 
a  personal  nature  or  so  made  by  local  law  ;  such  as  bank  or 
insurance  stock,  turnpike,  canal  and  bridge  shares,  and 
other  incorporeal  property,  owing  its  existence  to,  or  regu- 
lated by  peculiar  local  laws." 

Subject  to  exceptions  like  these,  says  this  eminent  com- 
mentator, ib.,  sec.  384,  "the  general  rule  is,  that  a  transfer  of 
personal  property,  good  by  the  law  of  the  owner's  domicil, 
is  valid  wherever  it  may  be  situate.     But  it  does  not  follow 


APPEALS  IN  EaUITY.  35:^ 

Charleston,  April,  IS60. 

that  a  transfer  made  by  the  owner,  according  to  tlic  law  of 
the  place  of  its  actual  situs,  would  not  as  completely  divest 
his  title  ;  nor  even  that  a  transfer  by  him  in  a  foreign  coun- 
try, which  would  be  good  according  to  the  law  of  that  coun- 
try, would  not  be  equally  eflectual,  though  he  might  not 
have  his  domicil  there.  For  purposes  of  this  sort,  his  per- 
sonal ])roperty  may,  in  many  cases,  be  deemed  subject  to  his 
disposal  wherever  he  may  be  at  the  time  of  the  alienation." 

Nothing  can  be  plainer  and  more  directly  to  the  point.  If 
Judge  Story  is  good  authority,  this  settles  the  question  arising 
on  this  part  of  the  argument. 

The  equity  of  Hermann  Cox  &  Company,  however,  extends 
only  to  the  amount  of  their  actual  advances  of  money.  It  is 
only  upon  the  ground  of  their  ])aying  valuable  consideration 
for  the  stock  in  ignorance  of  Madame  Szemere's  claim,  and 
upon  Boldin's  apparent  title,  and  authority  to  sell,  that  their 
equity  becomes  paramount  to  hers.  Otherwise,  hers  would 
have  prevailed.  If  they  had  had  notice  before  they  paid 
their  money,  they  would  not  have  been  entitled  to  the  pro- 
tection of  this  Court.  It  follows,  that  they  are  entitled  to  be 
reimbursed  from  the  said  stock,  the  sums  which  they  advanced 
thereon,  and  the  accruing  interest. 

The  opinion  and  judgment  of  this  Court  is,  that  the  fifty 
shares  of  the  stock  of  the  Slate  Bank  of  South  Carolina, 
mentioned  in  the  bill,  standing  in  the  name  of  Madame 
Leopoldine  Jiee  Turkovics,  is  to  be,  and  is  considered,  the 
property  of  Hermann  Cox  &  Company,  to  the  extent  of  the 
consideration  paid  by  them  for  the  same. 

It  is,  therefore,  ordered  and  decreed,  that  one  of  the  masters 
lake  an  account  of  the  sums  of  money  advanced  by  the  said 
Hermann  Cox  &  Company,  to  the  said  John  Boldin,  from  the 
date  or  dates  of  such  advancements,  to  the  time  of  the  sale 
hereinafter  ordered. 

It  is  further  ordered  and  decreed,  that  one  of  the  masters 
of  this  Court,  on  some  convenient  day,  to  be  fixed  by  him, 
after  duly  advertising  the  same,  do  sell  the  said  fifty  shares 
24 


354  APPEALS  IN  EaUITY. 


State  Bank  vs.  Cox  &  Co. 


of  bank  stock  at  public  auction  for  cash ;  and  that  from  the 
proceeds  of  said  sale,  he  pay  to  Hermann  Cox  &  Company 
the  aggregate  sum  of  the  money  paid  by  them  for  said  stock, 
with  interest  thereon,  as  herein  directed  to  be  calculated,  and 
that  out  of  the  overplus,  if  any,  he  pay  the  costs  of  these  pro- 
ceedings. 

It  is  further  ordered  and  decreed,  that  the  defendants,  Bar- 
ihelemy  Szemere  and  Leopoldine  Szemere,  pay  the  costs  of 
this  suit,  out  of  the  proceeds  of  the  sale  of  the  stock  as  above 
directed,  if  the  proceeds  of  that  sale  be  sufficient  for  that  pur- 
pose, after  satisfying  the  claim  of  Hermann  Cox  &  Company, 
and  if  not,  that  they  be  liable  for  said  costs  generally. 

The  defendants  Szemere  and  wife  appealed  on  the  grounds  : 

1.  That  no  right  of  property  is  vested  in  a  vendee,  even  by 
a  bona  ^de  sale  made  to  him  for  valuable  consideration  by  a 
person  having  possession  of  chattels  personal,  without  prop- 
erty or  authority  to  sell,  and  that  such  naked  possession  does 
not  authorize  the  application  of  the  principle,  that  when  one 
of  two  innocent  persons  must  suffer  loss,  it  must  fall  on  him 
who  has  placed  it  in  the  power  of  a  third  person  to  perpetrate 
a  fraud. 

2.  That  a  certificate  of  bank  stock  is  not  a  negotiable  in- 
strument; nor  does  the  legal  title  in  the  stock  pass  hy  a 
delivery  of  the  certificate  ;  and  that  the  delivery  and  custody 
of  the  certificate  passes  no  equitable  interest,  unless  done 
with  that  intent. 

3.  That  by  the  rules  of  the  State  Bank,  the  shares  in  that 
institution  are  transferable  only  at  the  bank,  personally  or  by 
attorney. 

4.  That  Boldin  had  neither  properly  in  the  shares,  nor 
authority  to  sell.  Or,  if  it  be  supposed  that  there  was  any 
authority  to  sell,  his  transactions  with  Messrs.  Cox  &  Co. 
were  by  way  of  hypothecation  or  pledge  ;  and  that  an  agent 
or  factor,  with  authority  to  sell,  has  no  authority  to  pledge  or 
transfer  the  goods  of  his  principal  to  secure  his  own  debt. 


APPEALS  IN  EaUITY.  355 

Charleston,  April,  1S60. 

5.  That  the  power  of  attorney  from  Mons.  and  Madame 
Szcmere  was  a  naked  power  to  John  Boldin,  not  coupled 
witfi  any  interest,  and  as  such  was  revocable  at  any  moment 
before  action  under  it,  and  that  it  was  so  revoked. 

6.  That  the  blanks  in  the  said  power  cannot  be  filled  up, 
■without  authority  from  Monsieur  and  Madame  Szemere, 
expressed  or  implied. 

7.  That  the  lapse  of  time  since  the  execution  of  the  power, 
and  all  the  circumstances  attending  its  transfer  from  Boldin 
to  Messrs.  Cox  &  Co.,  were  suflicient  to  excite  their  suspicion, 
and  caution  them  of  his  want  of  authority  and  property. 

S.  That  the  question  involved  is  not  one  of  fraudulent 
dealing  by  an  agent,  within  the  apparent  limits  of  his  power, 
but  one  of  an  agent  exceeding  his  power. 

9.  That  although  the  mode  of  transferring  a  title  to  stock 
should  be  referred  to  the  regulation  of  the  bank,  or  the  lex 
loci  reisi/x,  the  acquisition  of  any  equitable  interest,  under  a 
special  contract,  may  be  governed  by  the  law  of  the  domicil 
of  the  contracting  party. 

Pringle,  for  appellants. 

Messrs.  Cox  &  Co.  stand  only  in  Boldin's  shoes;  their  title 
is  his. 

There  is  no  evidence  that  any  consideration  was  paid  by 
Boldin  to  Madame  Szemere,  for  the  certificate  of  stock,  or 
that  he  had  in  any  way  purchased  it,  or  had  any  interest 
in  it. 

Nor  is  there  any  proof  of  any  contract  or  agreement  be- 
tween Boldin  and  Madame  Szemere  respecting  the  shares. 
Boldin  stands  before  the  Court  in  no  other  situation  than 
holding  in  his  hand  the  naked  blank  power  of  attorney  and 
the  certificate  of  stock. 

Under  these  circumstances,  it  is  only  in  consequence  of 
either  one  of  two  conditions  that  Messrs.  Cox  &  Co.  can 
claim  any  property  or  interest  in  these  shares. 


356  APPEALS  IN  EaUlTY. 

State  Bank  vs.  Cox  &  Co. 

Either,  1st,  In  consequence  of  the  legal  character  of  the 
certificate  ; 

Or,  2d,  In  consequence  of  title  derived  by  force  of  the  cir- 
cumstances under  which  the  certificate  was  delivered  to 
Boldin. 

As  to  the  first  position  that  Boldin  has  acquired  property 
in  these  shares  in  consequence  of  the  legal  character  of  the 
certificate — There  is  but  one  species  of  character  which  in- 
struments in  writing  possess,  by  force  or  virtue  of  which  alone 
Boldin  can  claim  title  in  these  shares,  and  that  is  negotia- 
bility.    Is  a  certificate  of  stock  a  negotiable  instrument  ? 

No  contract  was  assignable  by  the  common  law  ;  bills  of 
exchange  are  an  exception  by  universal  commercial  law. 
But  it  required  an  Act  of  Parliament  to  make  even  promis- 
sory notes  negotiable. 

This  strict  rule  is  by  no  means  one  of  a  technical  charac- 
ter. As  late  as  1856,  in  Dixon  vs.  Bovil,  39  Eng.  Law  and 
Eq.  Rep.,  47,  a  case  decided  in  the  House  of  Lords,  the 
Lord  Chancellor  said  :  "  It  is  a  rule  founded  in  extremely 
good  sense.  In  England,  a  plaintiff  suing  on  a  contract, 
unless  it  be  under  seal,  must  prove  a  consideration.  In  Eng- 
land it  is  a  perfectly  good  defence  to  show  illegality  of  con- 
sideration. When  an  action  is  brought  by  one  of  the  con- 
tracting parties,  illegality  of  consideration  can  always  be 
pleaded  as  a  defence.  It  is  the  policy  of  the  law  to  preserve 
this  principle  intact,  in  order  to  prevent  Courts  being  made 
ancillary  to  violations  of  law.  Now  this  principle  is  entirely 
defeated  if  a  contracting  party  can  make  a  floating  contract 
enforceable  by  bearer,  for  the  bearer  does  not  sue  as  assignee 
of  the  original  contracting  party.  He  may  be,  and  probably 
is,  a  stranger  to  the  original  contract.  His  right,  if  any,  is 
under  an  independent  contract  with  himself,  against  which 
no  illegality,  as  between  the  original  parties,  can  be  set  up. 
Bills  of  exchange  have  been  made  an  exception  for  the  con- 
venience of  trade,  but  it  is  an  exception  not  to  be  extended. 
The  drawer  of  the  bill  gives   to   the  endorser  a   better  title 


APPEALS  IN  EaUITY.  357 

Charleston,  April,  1S60. 

than  his  own,  and  (his  leads  or  may  lead  to  many  ill  conse- 
quences, but  mercantile  convenience  has  sanctioned  it.  No 
such  necessity,  however,  exists  in  the  case  of  other  contracts, 
and  there  is  no  authority  to  warrant  it.  Indeed,  I  iriay  ob- 
serve that  the  Stat.  12,  Geo,  III,  c.  92,  sec.  36,  art\)rds  statuta- 
ble authority  by  analogy  against  the  present  claim,  for  if  a 
promissory  note  could  not  have  been  made  transferable  by 
indorsement,  at  common  law,  there  would  have  been  no 
necessity  for  that  statute." 

This  being  the  wisdom  and  policy  of  the  law,  an  examina- 
tion into  the  principles  of  negotiable  paper  and  a  deduction 
from  all  the  decisions  will  show  that,  in  order  to  entitle  any 
instrument  to  the  character  of  negotiability,  there  must  be 
invariably  two  essential  ingredients — 

First  That  it  must  be  by  the  custom  of  trade  transferabie 
like  cash  upon  delivery. 

Second.  That  the  legal  title  must  be  conveyed  to  the  per- 
son holding  it,  so  that  he  may  maintain  an  action  in  his  own 
name. 

See  note  to  Miller  vs.  Race,  1  Smith's  Leading  Cases,  250, 
and  Broom's  Commentaries  on  Common  Law,  441. 

As  to  the  first  point,  that  to  make  an  instrument  negotia- 
ble it  must  by  the  custom  of  trade  be  transferable  like  cash 
upon  delivery. 

The  custom  of  trade  cannot  be  permitted  to  control  the 
policy  of  law,  and  evidence  of  its  custom  must  be  permitted 
only  in  subordination  to  that  general  policy.  No  proof  of 
custom  would  permit  usury.  But  even  if  evidence  of  cus- 
tom were  permitted,  it  has  utterly  failed  in  the  present  in- 
stance. There  is  not  a  particle  of  proof  by  any  one  of  the 
witnesses  that  such  is  the  custom. 

As  to  the  second  point,  that  it  is  of  the  essential  character- 
istic of  a  negotiable  instrument,  that  it  must  be  capable  of 
being  sued  on  by  the  party  holding  it. 


358  APPEALS  IN  EaUITY. 

State  Bank  vs.  Cox  &  Co. 

The  certificate  of  Stock  is  in  these  words  : 

CERTIFICATE  OF  STOCK. 

South  Carolina.  No.  5,600. 

Tliis  certifies  that  Madame  Leopoldine  Szemere,  7i^e  de 
Tiirkovics,  Paris,  is  entitled  to  fifty  shares  in  the  State  Bank, 
transferable  only  at  the  bank,  by  the  said  Madame  Leopold- 
ine Szemere,  ?iee  de  Turkovics,  Paris,  personally,  or  by  her 
attorney. 

Witness  the  seal  of  the  company,  and  the  signa- 
[Seal.]     tnre  of  the  president,  at  Charleston,  this  tenth  day 
of  July,  1852. 

EDWARD  SEBRING, 

President  Slate  Bank. 

It  is  to  be  observed  that  this  is  not  a  contract  for  the  pay- 
ment of  a  sum  certain  ;  it  is  a  declaration  that  one  is  entitled 
only  to  a  division  in  the  uncertain  profits  of  the  corporation. 

Next — even  with  regard  to  bills  of  exchange  and  promis- 
sory notes,  they  must  be  made  payable  to  bearer,  liolder, 
order,  assigns,  or  some  such  equivalent  word,  in  order  to  give 
the  person  holding  them,  by  assignment,  or  endorsement,  a 
right  to  sue  upon  them.     Byles  on  Bills,  62. 

Next — the  certificate  is  under  seal,  and  even  a  sealed  note 
loses  its  negotiability  by  the  seal.  Foster  vs.  Floyd,  4  McC, 
159. 

But  the  case  of  the  Commercial  Bank  vs.  Kortright,  22 
Wend.,  348,  will  be  quoted  to  prove  that  an  action  of  assump- 
sit will  lie  against  a  bank  by  one  holding  the  certificate  of 
shares,  and  a  blank  power  of  attorney,  even  when  there  was 
no  transfer  on  the  books  of  the  bank. 

The  case  of  Kortrighl,  however,  is  essentially  different  from 
the  present  case.  It  was  this:  Barker,  being  owner  of  stock, 
sent  the  certificate,  with  a  blank  power  of  attorney,  to  one 
Barton,  to  efi"ect  a  loan  of  $10,000.  Kortright  advanced  the 
money,  and  took  the  certificate  and  the  blank  power.  Barton 
paid   the  money  to  Barker,  and  then  absconded.     Kortright 


APPEALS  IN  EaUITY.  359 

Charleston,  April,  1S60. 

then  ticmaiided  a  transfer  of  the  shares  from  the  bank,  but 
it  was  refused  from  some  reasons  connected  with  another 
bank.  Upon  the  refusal,  Kortright  brought  an  action  of 
assumpsit  against  the  bank  for  damages.  There  was  much 
question  whetiicr  the  action  should  not  have  been  in  case, 
but  the  Senate  of  New  York,  constituting  the  highest  Court 
of  Appeals,  decided,  with  a  strong  dissenting  opinion,  from 
the  Chancellor  Walworth,  that  assumpsit  would  lie.  Now, 
the  essential  difference  between  Kortright's  case  and  this  is, 
that  the  consideration  money,  the  value  of  the  shares,  was 
paid  by  Kortright,  and  was  received  by  Barker,  the  original 
owner  of  the  shares.  Barker  never  resisted  the  transft'r,  but 
the  bank  undertook  to  do  so,  and  Kortright  being,  in  conse- 
quence of  the  receipt  of  the  money  by  Barker,  the  equitable 
owner  of  the  shares,  the  Court  held  that  there  was  an  under- 
taking, on  the  part  of  the  bank,  to  permit  the  transfer,  and 
having  refused,  an  action  lay  for  damages.  In  the  present 
case,  no  money  has  been  paid  to  Szemere;  there  is  nothing 
to  constitute  Messrs.  Cox  the  equitable  owners  in  the  sense 
and  manner  that  Kortright  was. 

This  view  of  Kortright's  case  was  afterwards  sustained 
and  expressed  in  another  case  which  arose  in  New  York,  in 
reference  to  the  same  bank,  the  case  of  Dunn  vs.  The  Com- 
mercial Bank,  W  Barb.,  581.  This  case,  besides  suslaining 
the  point  under  discussion,  is,  in  all  its  other  circumstances, 
so  very  similar  to  the  present,  that  it  may  be  regarded  as 
conclusive  of  the  whole  matter. 

The  action  in  Dunn's  case,  as  in  Kortright's,  was  in  as- 
sumpsit.    The  certificate  of  stock  was  as  follows: 

No.  314. 

COMMERCIAL  BANK  OI-'  BUFFALO. 

It  is  hereby  certified  that  John  Cleveland  Greene  is  entitled 
to  one  hundred  shares,  of  one  hundred  dollars  each,  in  the 
capital  stock  of  the  Commercial   Bank  of  Buffalo,  transfcra- 


3(50  APPEALS  IN  EaUITY. 

State  Bank  vs.  Cox  &  Co. 

ble  only  in  the  books  of  the  bank  by  the  said  stockholder  or 
his  attorney,  on  surrender  of  this  certificate. 

In  testimony  whereof,  tlie  cashier  has  set  his  hand, 
this  24th  day  of  June,  1836. 
100  Shares.  J.  STRINHAM,  Cashier. 

To  the  certificate  was  attached  a  power  of  attorney  in  the 
following  form  : 

Know  all  men  by  these  presents,  that  I,  John  Cleveland 
Greene,  for  value  received,  have  bargained,  sold,  assigned 
and  transferred,  and  by  these  presents  do  bargain,  sell,  assign 

and  transfer  unto one 

hundred    shares   of   the  Capital    Stock    of   the  Commercial 
Bank  hereunto  annexed,  standing  in  my  name  on  the  books 

of  the  said  bank,  and  do  hereby  constitute  and  appoint 

my  true  and  lawful  attorney, 

irrevocably,  &c.,  &c.,  do  sell  and  transfer,  &c.,  &c. 

Signed  by  J.  0.  GREENE,  [l.s.] 

At  the  trial  in  the  Court  below,  it  was  insisted  that  no  evi- 
dence had  been  presented  that  the  plaintiff  was  the  assignee 
of  the  stock  or  entitled  to  the  same.  The  Judge  charged  for 
the  plaintiff  against  the  bank,  and  a  verdict  was  found  ac- 
cordingly. But  the  Supreme  Court  sent  the  case  back,  and 
in  doing  so  said,  after  stating  the  facts  of  Kortright's  case  : 
"  There  is  a  manifest  distinction  between  that  case  and  this. 
Here  there  is  no  evidence  that  the  plaintiff,  Dunn,  purchased 
the  certificates.  He  does  not  prove  that  he  owned  them  or 
had  any  interest  in  them  whatever.  It  is  true,  he  had  pos- 
session of  the  certificates  standing  in  the  name  of  Greene 
and  Buckland,  and  attached  to  such  certificates  were  blank 
assignments  and  powers  of  attorney,  authorizing  the  transfer 
to  blank  by  blank  attorney.  If  the  plaintiff  was  the  purchaser 
of  these  certificates,  he  was  undoubtedly  authorized,  by  rea- 
son of  such  purchase,  and  his  ownership  thereof,  to  write  in 
his  own   name  as  he  chose,  as  the  attorney  to   make  such 


APPEALS  IN  EaUITY.  361 

Charleston,  April,  1860. 

transfer.  So  far,  the  case  of  Kortright  vs.  The  Com7uercial 
Bank  of  Bnjfalo  decides.  But  it  does  not  decide  that  the 
naked  possession  of  the  cert  if  cat  es  and  blank  assigmnents 
and  poicers  of  attorney  is  evidence  of  both.  Are  certificates 
of  slock,  ill  reference  to  negotiability,  placed  on  substantially 
the  same  ground  as  bills  of  exchange  and  promissory  notes  ? 
Are  they  transferable  by  mere  endorsement  and  delivery  ? 
Are  a  bond  and  mortgage,  or  any  other  evidences  of  debt 
not  negotiable,  assignable  by  the  mere  act  of  writing  the 
name  of  the  party  on  the  back,  and  delivering  the  iiistru- 
inent  with  the  name  on  so  endorsed,  without  any  considera- 
tion or  agreement?  If  not,  is  it  not  incumbent  upon  the 
party  claiming  under  such  transfer,  to  prove  the  contract  or 
consideration?  I  have  found  no  case  where  the  holder  of  an 
instrument  was  authorized  to  write  the  contract  under  which 
he  claimed,  over  the  signature  or  endorsement,  except  when 
the  proof  of  the  consideration  and  contract  was  first  made. 
See  Leonard  vs.  Vredenburgh,  S  John,  29;  Bailey  vs.  Free- 
man, 11  lb.,  121;  Herrich  vs.  Carman,  12  lb.,  159;  Nelson 
vs.  Dubois,  13  lb.,  175  ;   Catnpbell  vs.  Butler,  14  lb.,  340. 

"So,  in  the  case  o(  Kortriqht  vs.  Commercial  Ba?ik,a\i 
agreement  and  consideration  was  proved.  But  in  this  case 
the  Court  are  called  upon  to  presume,  from  the  plaintiff's 
possession  of  the  certificates  and  blank  assignments  and 
powers  of  attorney  annexed,  that  he  purchased  t/ie  stock  of 
Greene  and  Buckland,  and  that  his  name  was  inserted  or  as- 
sumed to  be  inserted  in  the  instrument  as  assignee.  The 
plaintiff  not  only  asks  the  Court  to  assume  the  existence  of 
the  contract  or  consideration  to  support  the  assignment,  but 
that  the  name  of  Isaac  T.  Hatch,  or  the  bank  itself,  is  in- 
serted in  the  instrument  as  the  attorney  of  Greene  and  Buck- 
land,  and  that  ihey  are  thereby  authorized  to  assign  the  stock 
on  the  books  of  tiie  bank  to  the  plaintiff.  It  seems  to  me 
that  this  is  carrying  the  rule — already  sufficiently  broad — be- 
yond all  precedents  on  that  subject,  and  for  one,  I  cannot 
consent  to  extend  it  beyond  cases  already  adjudicated." 


3()2  APPEALS  IN  EaUITY. 

State  Bank  vs.  Cox  &  Co. 

But  the  argument  has  been  pressed  that  from  the  following 
clause   in   the  Act  of  Incorporation,  of  1S02,  2  Faust,  464, 
"  That  the  stock  of  the  bank  shall   be  assignable  and  trans- 
ferable according  to  such  regulations  as  may  be  instituted  in 
that  behalf  by  the  directors,"  it  is  the  intention  and  effect  of 
the  Act  to  make  the  certificate  negotiable.     Directly  the  re- 
verse is  the  case.     The  object  of  that  clause  was  not  to  con- 
fer any  assignable  or  transferable  qualitj^  upon  the  shares,  for 
that  to  the  same  intent  as  all  other  non-negotiable  contracts 
they  already  possessed  by  the  general  law;  but  the  very  plain 
and  evident  intention  was  to  confer  the  authority  upon  the 
directors  to  make  such  rules  as  they  desired.     It  was  in  ref- 
erence to  the  regulations  of  the  directors  that  this  section  of 
the  Act  was  drawn — not  to  the  transferability  of  the  stock. 
And  for  tliis  very  excellent  reason,  that  it  concerned  the  di- 
rectors very  much  to  know  who  were  and  how  many  were 
stockholders  of  the  bank.     It  would  have  been  most  ruinous 
if  the  bank  were  exposed  to  the  suit  of  every  one  who  hap- 
pened to   have  in  his   possession  a  certificate  of  the  stock. 
But  it  is  said  that  the  bank  has  made  no  regulation  on  the 
subject.     This  certainly  is  not  so.     The  bank  has  made  reg- 
ulations.    There  are  regular   transfer-books   kept,  which,  of 
course,  are   the   highest   evidence  of  the  title   to  the  shares. 
And  the  directors  have  fixed  the  terms  and  the  language  of 
the  certificate  of  shares.      This  certificate  declares  that  the 
shares  are  "  transferable  only  at  the  bank."     This  is  the  reg- 
ulation which  the  directors  have  made  upon  the  subject.     It 
is  not  the  less  a  regulation  because  it  is  contained  in  the  cer- 
tificate.    It  is,  perhaps,  the  most  solemn  and  authentic  regu- 
lation of  the  directors,  because  it  is  certified  by,  and  has  the 
sanction  in  each  case,  of  the  signature  of  the  president  and 
the  seal  of  the  corporation.    So  far  from  affording  any  greater 
facilities  to  the  transferability  of  the  shares,  this  clause  of  the 
charter  was  expressly  enacted  to  enable  the  directors  to  restrain 
this  facility,  and  this  for  the  safety  of  the  bank  and  the  com- 
munity, as  will  appear  from  the  remarks  of  ('hancellor  Wal- 


APPEALS  IN  EQUITY.  363 


Charlesion,  April,  ISGO. 


worth,  in  22  Wend.,  353:  "Indeed,"  he  says,  s])eaking  of 
JNew  York,  "the  Legislature  of  this  State,  when  they  wished 
to  restrain  the  negotiahility  of  the  certificates  of  deposit  of 
the  New  York  Life  Insurance  and  Trust  Company,  so  as  to 
prevent  them  from  forming  a  part  of  the  currency  or  circu- 
lating medium  of  the  State,  supposed  it  to  be  merely  neces- 
sary to  insert  a  provision  in  the  Act  of  Incorporation  that 
such  certificates  should  only  be  transferable  on  the  books  of 
the  company  according  to  such  regulations  as  the  directors 
should  establish,  in  the  same  manner  as  the  stock  was  trans- 
ferable. I  recollect  distinctly  being  applied  to  by  a  com- 
mittee of  the  Senate  on  the  subject — (as  the  principal  object 
of  the  Legislature,  in  granting  that  Act  of  incorporation,  was 
to  provide  a  safe  place  for  the  investment  of  funds  belonging 
to  suitors  of  the  Court  of  Chancery,  and  of  infants  whose 
funds  were  under  the  protection  of  that  Court  and  the  Surro- 
gate's)— and  that  this  amendment  was  inserted  for  the  express 
purpose  of  preventing  a  custom  of  Wall  street,  or  any  other 
custom,  making  that  negotiable  by  a  blank  transfer  which 
the  Legislature  had  determined  should  not  be  negotiable  by 
mere  endorsement  or  delivery." 

The  certificate  of  stock,  upon  these  principles,  not  being 
negotiable,  the  direct  authorities  on  the  subject  entirely  sus- 
tain all  that  has  been  said.  The  first  to  be  noticed  is  that  of 
Dunn  vs.  The  Commercial  Bank,  11  Barb.,  581,  which  has 
been  already  noticed.  The  question  of  negotiability  of  cer- 
tificates of  stock  was  also  made  in  the  case  of  The  Mechan- 
ics^ Bank  vs.  The  New  York  and  New  Haven  Railroad  Com- 
pany, 3  Keruan,  N.  Y.  Rept.,  59.9. 

[n  this  case,  the  Judge,  in  delivering  the  opinion  of  the 
Court  of  Appeals  of  New  York,  says  :  "  It  seems  to  me, 
therefore,  that  we  are  brought  directly  to  the  question,  wheth- 
er certificates  of  stock  in  the  defendant's  corporation  are  to 
be  regarded  as  negotiable  instruments,  in  the  sense  of  the 
commercial  law,  so  that  by  their  endorsement  and  delivery 
to  a  purchaser,  in  good  faith,  a  title  to  the  stock  they  profess 


364  APPEALS  IN  EaUITY. 

State  Bank  vs.  Cox  &  Co. 

to  represent  may  be  acquired,  although  in  the  hands  of  the 
vendor  they  are  spurious  and  void,  and  although  the  com- 
pany itself  has  never  recognized  the  transfer.  This  question, 
I  think,  must  be  answered  in  the  negative.  They  contain,  in 
the  first  place,  no  word  of  negotiability.  They  declare  sim- 
ply that  the  person  named  is  entitled  to  certain  shares  of 
stock.  They  do  not,  like  negotiable  instruments,  run  to  the 
bearer,  or  to  the  order  of  the  party  to  whom  they  are  given. 

"1  have  examined  attentively  the  authorities  cited  upon 
the  question,  but  do  not  find  that  the  doctrine  contended  for 
has  in  them  the  least  support.  In  the  case  of  Kortright  vs. 
the  Comynercial  Bank,  20  Wend.,  91,  and  22  Wend.,  347,  it 
was  held  that  an  action  of  assumpsit  will  lie  against  the  cor- 
poration in  favor  of  the  assignee  of  a  stock  certificate  for 
refusing  to  permit  a  transfer  on  the  books.  This,  and  the 
class  of  cases  to  which  it  belongs,  proves  that  a  transfer,  not 
made  according  to  the  charter  or  by-laws  of  a  corporation, 
confers  upon  the  transferee,  in  an  equitable  sense,  the  title  of 
the  previous  owner.  That,  being  thus  clothed  with  the  equi- 
table title,  it  is  the  duty  of  the  corporation  to  permit  him  to 
take  a  legal  transfer  on  the  books,  and  that  the  law  will  imply 
an  assumpsit  for  the  performance  of  that  duty.  For  a  breach 
of  this  duty,  actions  of  assumpsit  and  case  have  been  indif- 
ferently maintained.  In  principle,  the  remedy  should  have 
been  a  special  action  on  the  case.  Such  was  the  opinion  of 
Chief  Justice  Nelson,  in  the  case  referred  to  ;  but  he  adds  : 
'It  being  once  settled  that  assumpsit  will  lie,  there  is  no 
occasion  for  disturbing  it.'  It  is  only  material  to  observe  that 
the  assumpsit  is  not  in  the  certificate  itself,  and  so  passing 
by  endorsement  and  delivery  to  the  transferee,  but  is  implied 
after  the  transfer,  from  the  duty  of  the  corporation  to  clothe 
the  equitable  owner  with  the  legal  title.  Such  cases,  so  far 
from  tending  to  show  that  a  dealer  in  certificates  acquires 
rights  better  than  those  of  the  person  with  whom  he  deals, 
seem  to  me  to  justify  quite  an  opposite  conclusion.     They 


APPEALS  IN  EQUITY.  365 

Charleston,  April,  18(30. 

necessarily   assume   that   the   change   of  title   is   incomplete 
until  the  proper  transfer  is  made  on  the  books.     *     *     *      * 

"  Looking  at  the  question  upon  principle,  I  am  not  aware 
of  anything  in  the  nature  or  uses  of  this  kind  of  property, 
which  requires  an  application  of  the  rules  ivhich  belong  to 
negotiable  securities.  Stocks  are  not  like  bank  bills,  the 
immediate  representative  of  money,  and  intended  for  circu- 
lation. The  distinction  between  a  bank  bill  and  a  share  of 
bank  stock,  is  not  difficult  to  appreciate.  Nor  are  they  like 
notes  or  bills  of  exchange,  less  adapted  to  circulation,  but 
invented  to  supply  the  exigencies  of  commerce,  and  governed 
by  the  peculiar  code  of  the  commercial  law.  They  are  not 
like  exchequer  bills  and  government  securities,  which  are 
made  negotiable  either  for  circulation  or  to  find  a  market. 
Nor  are  they  like  corporation  bonds,  which  are  issued  in 
negotiable  form  for  sale,  and  as  a  means  for  raising  money 
for  corporate  uses.  The  distinction  between  all  these  and 
corporate  stocks,  is  marked  and  striking.  They  are  all,  in 
some  form,  the  representative  of  money,  and  may  be  satisfied 
by  payment  in  money  at  a  time  specified.  Certificates  of 
stock  are  not  securities  for  money  in  any  sense,  much  less 
are  they  negotiable  securities.  They  are  simply  muniments 
and  evidence  of  the  holder's  title  to  a  given  share  in  the 
property  and  franchises  of  the  corporation  of  which  he  is  a 
member.  The  primary  use  and  design,  I  must  be  allowed 
to  say,  of  this  species  of  property  is  to  atTord  a  steady  invest- 
ment for  capital,  rather  than  to  feed  the  sj)irit  of  speculation. 
I  am  aware  that  peo])le  will  speculate  in  stocks,  as  they 
sometimes  do  in  lands,  and  there  is  no  law  wiiich  absolutely 
forbids  it;  but  such,  I  am  persuaded,  is  not  the  use  for  which 
we  should  hold  them  chiefly  intended." 

In  Edwards  on  Bills  of  Exchange,  page  61,  it  is  said  :  "A 
certificate  of  stock,  which  is  not  a  contract  for  the  payment  of 
money,  and  is  not  in  its  tern)s  negotiable,  is  an  entirely  dif- 
ferent instrument,  and  is  not  placed  upon  the  footing  of  com- 
mercial paper,  and,conse(iucntly,  the  lender  taking  it  in  good 


366  APPEALS  IN  P^aUlTY. 

Stale  Bank  I's.  Cox  &  Co. 

faith  as  a  security  for  a  loan  of  money,  does  not  thereby 
acquire  such  a  right  as  against  the  corporation,  as  will  enti- 
tle him  to  compensation,  notwithstanding  the  certificate  was 
fraudulently  issued  by  the  assent  of  the  corporation.  In  other 
words,  certificates  of  stock  in  a  banking  association,  or  in  a 
railroad  company,  are  not  securities  for  the  payment  of  money 
that  may  be  transferred,  subject  to  the  rules  applicable  to 
negotiable  paper;  on  the  contrary,  they  are  simply  the  muni- 
ments and  evidence  of  the  holder's  title  to  a  given  share  in 
franchises  of  tlie  corporation  of  whicli  he  is  a  member." 

The  question  of  the  negotiability  of  instruments,  similar 
to  bank  stock,  has  very  recently,  in  1858,  been  examined  by 
the  Supreme  Court  of  the  United  States  in  the  case  of  Combs 
vs.  Hodge,  21  Howard,  397.  The  following  is  a  statement  of 
that  case :  Combs  was  the  proprietor  of  bonds  issued  by  the 
State  of  Texas,  which  concluded  in  this  way:  "This  certifi- 
cate is  transferable  by  the  said  Leslie  Combs,  or  his  legal 
attorney  or  representative,  on  the  books  of  the  stock  commis- 
sioner only." 

In  1S40,  Combs  endorsed  two  of  these  certificates  in  blank, 
and  placed  them  in  the  hands  of  James  Love,  of  Galveston, 
for  the  purpose,  as  he  alleged,  of  enabling  Love  to  receive 
payment,  which  was  then  expected,  but  which  was  not 
made. 

Love  transferred  the  bonds  fairly  to  one  Andrew  Hodge, 
for  valuable  consideration.  By  subsequent  legislation  of  the 
United  States  and  of  Texas,  the  bonds  became  payable  at 
the  Treasury  of  the  United  States,  where  payment  of  them 
was  demanded  by  J.  Ledgear  Hodge,  the  administrator  of 
Andrew  Hodge.  Whereupon,  an  injunction  was  obtained  by 
Combs,  to  stay  the  payment  of  the  money  until  it  could  be 
decided  to  whom  it  was  legally  due,  by  proceedings  between 
the  parties,  in  the  nature  of  a  bill  of  interpleader,  which 
were  instituted  in  the  Circuit  Court  of  the  District  of  Colum- 
bia. This  Court  dismissed  the  bill  of  the  plaintiff.  Combs; 
upon  an  appeal  to  the  Supreme  Court  of  the  United  States, 


APPEALS  IN  EaUITY.  367 

Charleston,  April,  1S60. 

the  Court  reversed  the  decree  of  the  Circuit  Court,  dismissing 
the  bill  ;  but  in  dcHveriug  their  opinion,  the  Supreme  Court 
said,  that  the  "case  is  presented  in  an  unsatisfactory  man- 
ner," and  ordered  the  cause  back  to  the  Circuit  Court,  "  with 
directions  to  allow  the  parties  to  amend  the  pleadings  and  to 
take  testimony,  if  they  should  be  so  advised." 

Although  the  case  was  thus  not  finally  disposed  of,  the 
Supreme  Court  expressed  itself  very  emphatically  and  dis- 
tinctly, as  to  the  character  of  the  class  of  instruments  which 
was  the  subject  of  the  suit. 

The  Court  said  :  "  The  title  of  the  defendant,  therefore^ 
depends  upon  the  effect  to  be  giren  to  the  endorsement  of  the 
certificates  i?}  blank  by  the  plaintiff  and  their  deposit  wit/i 
Love.  The  question  is,  was  he  invested  with  such  a  title 
that  a  bona  fide  purchaser,  iiaving  no  notice  of  its  infirmity, 
will  be  protected  against  a  latent  defect?  The  law  merchant 
accords  such  protection  to  a  holder  of  a  bill  of  exchange 
taken  in  the  course  of  business,  and  for  value,  and  without 
notice;  and  legislation,  in  Great  Britain  and  some  of  the 
States  of  the  Union,  has  extended  to  the  same  class  of  per- 
sons a  similar  protection  in  other  contracts. 

"  But  this  concession  is  made  for  the  security  and  con- 
venience, if  not  to  the  necessities  and  wants  of  commerce, 
and  is  not  to  be  extended  beyond  them.  It  is  a  departure 
from  the  fundamental  principle  of  property — which  secures 
the  title  of  tlie  original  owner  against  a  wrongful  disposition 
by  another  person,  and  which  does  not  permit  one  to  transfer 
a  belter  title  than  he  has. 

'•The  party  who  claims  the  benefit  of  the  exception  must 
come  within  all  the  conditions  upon  which  it  depends.  In 
the  case  of  bills  of  excliange  that  have  originated  in  fraud  or 
illegality,  the  holder  is  bound  to  establish  that  he  is  not 
accessory  to  the  illegal  or  fraudulent  design,  but  a  holder  for 
value.  If  the  bill  is  taken  out  of  the  course  of  trade,  or  over- 
due, or  with  notice,  the  rights  of  the  liolder  are  subjected  to 
the  operation  of  the  general  rule.     In  Aishunit  vs.  The  Man- 


368  APPEALS  IN  EaUITY. 

State  Bank  vs.  Cox  &  Co. 

ager  of  /he  Bank  of  Australia,  37  L.  and  Eq.  R.,  195,  Justice 
Erie  says  :  '  It  seems  to  me  extremely  important  to  draw  the 
line  clearly  between  negotiable  instruments,  properly  so- 
called,  and  ordinary  chattels,  which  are  transferable  by 
delivery,  though  the  transferrer  can  only  pass  such  title  as 
he  had.  As  to  negotiable  instruments  during  their  currency, 
delivery  to  a  h una  fide  holder  for  value  gives  a  title,  even 
though  the  transferrer  should  have  acquired  the  instrument 
by  theft,  but  after  maturity  the  instrument  becomes,  in  effect, 
a  chattel  only,  in  the  sense  I  have  mentioned.' 

"When  the  instrument  is  one  which  by  law  is  not  negoti- 
able, or  when  the  negotiability  has  been  restricted  by  the 
parlies,  the  rule  of  the  law  merchant  has  no  application.  The 
loss  of  the  instrument  with  the  name  of  the  payee  upon  it, 
or  its  transfer  by  a  faithless  agent,  does  not  impair  the  title  of 
the  owner.  Nor  can  a  purchaser  safely  draw  any  conclusion 
from  the  existence  of  an  endorsement  on  such  a  paper,  that 
the  holder  is  entitled  to  sell  or  discount  it.  [Berdebach  vs. 
Wilkins,  10  Harris,  26;  Ames  vs.  Drew,  II  Foster,  475; 
Synunds  vs.  Atkinson,  37  L.  and  Eq.,  585;  25  L.  and  Eq., 
318.)  Nor  can  the  holder  write  an  assignment  or  guarantee 
not  authorized  by  the  endorser  (4  Duer,  45  ;  25  L.  and  Eq., 
19;  6  Harris,  434).  This  doctrine  has  been  applied  to  deter- 
mine conflicting  claims  to  public  securities  which  were  not 
negotiable  on  their  face,  though  the  subject  of  frequent  trans- 
fers. 

"  The  suit  of  Tonkin  vs.  Fuller,  3  Doug.,  300,  was  for  four 
victualling  bills,  drawn  by  commissioners  of  the  victualling 
office  on  their  treasurer,  in  favor  of  their  creditor.  These 
were  sent  to  an  agent,  with  a  power  of  attorney,  '  to  receive 
the  money  and  give  receipts  and  discharges;'  who  pledged 
them  for  an  advance  of  money.  Lord  Mansfield  said,  the 
only  question  is,  who  has  the  right  of  property  in  this  bill  ?  It 
must  be  the  plaintiff",  unless  he  has  done  something  to  entitle 
another.  It  is  deposited  with  the  defendant,  by  one  who  had 
it  under  a  limited  power  of  attorney.     If  the  plaintiff"  had 


APPEALS  IN  EQUITY.  3fi9 

Charleston,  April,  ISfiO. 

ever  consented  to  the  disposal  of  the  bill,  he  would  not  be 
allowed  to  object,  nor  w^onld  he  if  the  money  had  ever  come 
to  his  use.     But  here  there  is  no  such  pretence." 

Glynn  vs.  Baker,  13  East,  500,  was  a  suit  for  bonds  of  the 
East  India  Company,  payable  to  their  treasurer,  and  sold 
with  his  endorsement.     Le  Blanc,  J.,  said: 

"  Here  are  persons  intrusted  with  the  securities  of  A  and  B, 
who  part  with  the  securities  of  A/and  when  called  on  for 
them,  give  the  securities  of  B.  That  difficulty  can  only  be 
met  by  assimilating  such  securities  to  cash,  which,  whether 
it  has  an  ear  mark  set  upon  it  or  not,  if  passed  by  the  person 
entrusted  with  it  to  a  bo?ia  fide  holder  for  valuable  consider- 
ation without  notice,  cannot  be  recovered  by  the  rightful 
owner,  but  how  does  the  similitude  hold?" 

And  Lord  Ellenborough  said,  "  any  individual  might  as 
well  make  his  bond  negotiable."        ***** 

"  JVe  have  considered  this  cause  upon  the  assumption  that 
the  defendant  was  a  holder  for  value.''         *  *  *  * 

In  delivering  their  opinion  in  this  case  of  Combs  vs.  Hodge, 
the  Supreme  Court  of  the  United  States  quoted  and  relied 
upon  the  case  of  Dunn  vs.  Commercial  Bank  of  Buffalo,  II 
Barb.,  5S0. 

It  has  beeu  urged,  in  argument,  that  certificates  of  stock  are 
negotiable  from  their  analogy  to  certain  instruments  of  nego- 
tiable qualities,  such  as  dock  warrants,  exchange  bills  and 
India  warrants,  and  to  bills  of  lading,  whose  negotiability  is 
by  no  means  conceded,  but  yet  contended  for.  To  this  it 
may  be  conclusively  answered  that,  it  is  evident  that  the  first 
of  these  documents  are  not  negotiable  since  it  required  the 
Stat.,  6  Geo.  IV,  c.  94,  to  render  them  so,  even  in  certain 
cases.  And,  in  Evans  vs.  Ti-uinan,  2  Barn,  and  Adol.,  886, 
it  was  decided,  with  regard  to  East  India  warrants,  one  of  the 
most  important  of  the  class,  that  where  the  provisions  of  that 
statute  do  not  apply,  there  is  no  negotiability  for  those  war- 
rants at  the  common  law.  The  argument  in  favor  of  the 
negotiability  of  bank  certificates,  from  a  comparison  to  bills 
25 


370  APPEALS  IN  EQUITY. 

State  Bank  vs.  Cox  &  Co, 

of  lading,  is  equally  untenable,  for  a  hill  of  lading  is  not  a 
negotiable  instrument — it  is  not  transferable,  like  cash,  upon 
delivery,  nor  can  the  person  holding  it  maintain  an  action  on 
it  in  his  own  name.  The  case  of  Lickharrow  vs.  Mason,  2 
T.  R.,  63,  is  relied  on  as  establishing  the  doctrine  of  the  nego- 
tiability of  a  bill  of  lading.  But  "that  case  refers  only  to 
those  instances  in  which  a  previous  sale  of  the  goods  has 
been  made  to  the  consignee,  and  merely  determines  that  if 
the  vendee  of  goods  re-sell  them  after  they  have  left  the  cus- 
tody of  the  vendor,  to  a  bona  fide  purchaser  for  value,  the 
right  of  property  acquired  by  the  latter  shall  not  be  defeated 
by  a  subsequent  stoppage  in  transitu,  if  he  have  taken  an 
assignment  of  the  bill  of  lading." 

Tlie  idea  which  has  been  sometimes  inaccurately  expressed 
with  regard  to  the  negotiability  of  a  bill  of  lading,  has  been 
very  ably  confuted  in  a  tiote,  by  the  American  editor  of 
Smith's  leading  cases,  to  the  case  oi  Lickharrow  vs.  Mason,  the 
conclusion  to  which  is  as  follows:  "The  whole  of  the  argu- 
ment against  the  negotiability  of  the  bill  of  lading,  may  be 
summed  up  in  a  single  sentence,  by  saying  that  to  impress  a 
character  so  new  and  extraordinary  upon  an  instrument  not 
for  the  payment  of  money,  requires  the  authority  of  at  least 
one  decision,  while  no  such  decision  can  be  found." 

Tliis  certificate  being  thus  in  no  respect  negotiable,  the 
next  ciuestion  is,  whether  Messrs.  Cox  &  Co.  can  claim  title  [o 
it  from  the  transfer  to  them  by  Boldin,  by  virtue  of  the  cir- 
cumstances under  which  it  was  placed  in  Boldin's  possession 
by  Madame  Szemere.  These  circumstances  can,  but  from 
two  considerations,  be  supposed  to  conter  any  authority  upon 
Boldin  to  convey  a  title  to  Cox  &  Co. 

1.  It  may  be  said  that  Madame  Szemere,  having  invested 
Boldin  with  all  the  indicia  of  title,  and  liaving  held  him  out 
to  the  world  as  the  owner  of  the  shares,  should  be  liable  upon 
any  transfer  which  he  may  have  made. 

2.  That  Madame  Szemere,  having  invested  Boldin  as  an 
agent,  with  the  power  to  sell,  she  is  bound  by  his  agency. 


APPEALS  IN  EaUITY.  371 

Charleston,  April,  1860. 

In  Other  words,  that  Madame  Szemere,  having  rcpresontod 
Boldin  either  as  owner  or  as  agent,  she  is  bound  by  all  that 
he  has  done. 

As  to  the  first  proposition.  It  is  not  true  that  Madame 
Szemere  invested  B  ildin  with  all  the  indicia  of  title,  or  held 
him  out  to  the  world  as  owner,  so  as  to  be  liable  upon  any 
transfer  which  he  might  make.  For  this  could  be  so  only 
because  the  possession  of  the  certificate  conferred  the  legal 
title  upon  him,  which  is  contrary  to  all  the  testimony,  (see 
Sebring's,  the  president's,)  and  is  in  effect  establishing  that 
the  certificate  is  a  negotiable  instrument.  Or,  because  the 
mere  possession  of  the  certificate  and  the  power  of  attorney 
indicated  such  absolute  ownership,  that  any  transfer  which 
he  might  make,  was  conclusive  against  tlie  true  owner. 

It  is  difficult  to  ascertain  upon  what  precise  ground  the  cir- 
cuit decree  rests  its  decision.  In  the  first  |iart  of  the  decree, 
on  the  sixth  page,  the  Chancellor  says  that  he  is  inclined  to 
think  that  the  preponderance  of  argument  and  authority  is  in 
favor  of  the  position  that  certificates  of  bank  stock  are  trans- 
ferable by  delivery,  but  that  he  does  not  rest  his  judgment 
upon  that  ground.  On  the  next  page,  when  he  is  discussing 
the  principles  upon  which  he  does  rest  his  decree,  he  says, 
and  the  same  idea  is  repeated  throughout  the  decree,  that  by 
delivering  the  certificate  of  stock  and  the  power  of  attorney 
to  lioldin,  IMadan)e  Szemere  invested  him  with  all  the  indicia 
of  property  and  ownership,  as  to  the  said  shares.  This  is 
btit  declaring  that  the  certificate  and  the  power  of  attorney 
are  negotiable,  and  that  Ity  the  delivery  of  them  the  right  to 
the  shares  passes.  How  can  the  mere  delivery  of  the  crtifi- 
cate  and  the  power  of  attorney  invest  one  with  all  the  right  of 
ownership,  unless  they  be  negotiable  in  their  character? 
Atid  yet  the  Chancellor  says  that  he  will  not  rest  the  decree 
upon  tlie  ground  that  the  title  to  the  shares  passed  by  the 
delivery  of  the  certificate.  This  is  a  manifest  inconsistency, 
and  shows  that  while  the  Chancellor  thought  he  was  decid- 
ing the  case  upon  other  principles,  he  was,  in   reality,  dccid- 


•372  APPEALS  IN  EQUITY. 

Slate  Bank  r.s.  Cox  &  Co. 

ing  it  upon  tlie  ground  that  the  title  passed  by  tlie  delivery 
of  the  certificate. 

On  the  top  of  the  8th  page,  there  is  a  declaration  which  at 
first  appears  to  afford  the  unconfused  idea  upon  which  the 
decree  rests.     The  Chancellor  says: 

"There  is  no  doctrine  of  equity  jurisprudence  better  sup- 
ported by  reason,  as  well  as  authority,  than  this:  that  where 
one  of  two  innocent  persons  must  suffer  loss,  it  must  fall  on 
the  party  who,  by  incautious  and  misplaced  confidence,  has 
occasioned  it,  or  placed  it  in  the  power  of  a  third  party  to 
perpetrate  the  fraud  by  which  the  loss  has  happened." 

Now,  this  doctrine  of  equity  jurisprudence,  to  which  the 
Chancellor  refers,  proceeds  upon  the  ground  of  constructive 
fraud — that  is  the  reason  of  tlie  rule.  See  1  Story  Eq.,  sec. 
385.  And  fraud  cannot  be  implied  unless  upon  the  doctrine 
of  estoppel,  that  is,  that  a  party  has  done  some  improper  or 
wilful  act,  to  which  another  has  given  credence,  and  to  which 
the  assertion  of  his  own  rights  would  be  contradictory.  If 
Madame  Szemere  had  invested  BolJin  with  all  the  indicia  of 
title — if  she  had  regularly  transferred  the  shares  to  his  name 
on  the  books  of  the  bank,  she  would  now  be  estopped  from 
gainsaying  the  language  which  such  indicia  of  title  would 
hold,  even  although  Boldin  was  not  the  owner  of  the  shares. 
But,  if  she  has  not  done  an  act  which  invests  Boldin  with 
the  indicia  of  title,  and  by  which  she  would  now  be  estopped 
from  saying  that  the  title  is  still  in  her,  she  cannot  be  held 
amenable  to  a  principle  of  equity  jurisprudence,  which  pro- 
ceeds only  upon  the  doctrine  of  estoppel.  That  the  mere 
possession  of  the  certificate  and  the  power  of  attorney,  is  not 
the  possession  of  the  indicia  of  title,  is  apparent  from  the 
testimony,  and  every  authority  which  has  been  cited.  The 
Chancellor's  application  of  the  doctrine  of  constructive  fraud, 
can  proceed  only  from  the  idea  that  the  title  to  the  shares 
passed  upon  the  delivery  of  the  certificate,  the  ground  upon 
which  he  desired  not  to  rest  his  decree. 

The  mere  possession  of  property  is  not  the  possession  of 


APPEALS  IN  EaUITY.  373 

Cliarleston,  April,  1S60. 

all  tlio  indicia  of  title,  and  the  application  of  this  doctrine  of 
constructive  fraud,  that  in  cases  where  one  of  two  innocent 
persons  must  sutler  loss,  the  loss  should  fall  upon  hini  who 
is  the  occasion  of  that  loss,  to  instances  of  the  disposal  of 
property  by  one  who  is  merely  in  possession  of  it,  is  entirely 
inconsistent  with  a  number  of  well  recognized  and  adjudi- 
cated cases.  If  the  doctrine  referred  to  by  the  Chancellor 
can  be  made  to  apply  to  the  case  of  Madame  Szernere,  it 
should  equally  have  applied  to  the  deposit  by  Combs  in  the 
hands  of  Love,  of  the  Texan  certificates,  with  the  blank 
endorsements,  and  yet  the  Supreme  Court  decid(>d  that  Love 
could  convey  no  title.  So,  in  the  very  recent  case  of  Car- 
7nic/ia el  vs.  Buck,  decided  in  this  Court,  it  is  said:  "  If  the 
mere  custody  of  property  is  such  evidence  of  ownership  as 
to  mislead,  then  what  can  a  bailor  do?  Must  he  lose  his 
property  unless  he  go  along  and  make  continual  proclama- 
tion of  his  rights  and  the  limited  contract  he  has  made? 

"  There  is  no  other  solution  of  the  difficulty,  it  seems  to 
me,  but  to  declare  that  when  one,  for  a  specific  purpose, 
commits  his  property  to  a  limited  agent,  in  the  usual  way  of 
doing  such  things,  he  is  not  to  be  accused  of  holding  out  the 
agent  as  more  than  he  is,  or  giving  him  the  indicia  of  prop- 

f^Y'i  \7  "^  "^  ^  *  ^  ^  ^' 

"Now,  what  indicia  of  ownership  did  Carmichael  impart 
to  Huggins  ?  None  whatever,  according  to  the  proof,  exce])t 
giving  him  possession,  and  if  the  possession  of  a  ballet;  of 
this  description  is  a  sufficient  indicium  of  ownership,  to  be 
construed  into  a  misleading  of  the  public,  it  will  no  longer 
be  safe  for  a  planter  to  send  his  cotton  to  market  by  a  wagon 
or  boat." 

There  is  this  difference  between  Carmichael's  case  and 
that  of  Madame  Szernere,  that  the  raft,  in  his  case,  contained 
no  evidence  whatsoever  that  it  did  or  might  belong  to  any 
one  else;  while  Madame  Szemere  did  that  which,  in  the 
striking  language  of  Carmichael's  case,  was  a  "  continual 
proclamation   of  her   rights."      The  certificate  was   in    her 


374  APPEALS  IN  EaUlTY. 

State  Bank  vs.  Cox  &  Co. 

name;  it  declared  that  the  shares  were  her  property,  and  the 
power  of  attorney  which  accompanied  it,  was  special  and 
limited  by  its  terms  to  the  execution  of  a  single  act. 

There  are  many  other  cases  whicli  illustrate  these  views; 
and  here  it  will  be  proper  to  notice  the  case  of  Pickering  vs. 
Busk,  15  East,  3S,  which  will  be  quoted  on  the  opposite 
side.  In  that  case,  the  purchaser  of  hemp  had,  at  the  time 
of  the  purchase,  given  orders  in  person  that  it  should  be 
transferred  on  the  books  of  the  warehouse  from  the  name  of 
the  owner  to  the  name  of  a  broker,  and  a  subsequent  sale  by 
the  latter,  without  further  proof  of  authority,  was  held  valid 
against  the  first  purchasor,  in  consequence  of  the  particular 
course  of  conduct  adopted  by  the  latter.  It  was  not  the  mere 
possession  of  the  hemp  that  rendered  the  sale  valid  by  the 
broker,  but  the  possession  of  the  hemp  in  connection  with 
the  transfer  to  the  name  of  the  broker  on  the  books  of  the 
warehouse.  Here  was  a  concurrence  of  possession  and  of 
the  indicium  of  title,  as  the  entry  ou  the  books  was  an  evi- 
dence of  title.  If  Madame  Szemere  had  actually  made  a 
transfer  on  the  books  of  the  State  Bank,  of  the  shares  to  the 
name  of  Boldin,  this  case  would  have  been  perfectly  analo- 
gous to  Pickering  vs.  Busk,  but  wanting  that  transfer,  it 
wants  everything  which  makes  Pickering  vs.  Busk,  applica- 
ble to  her  case. 

In  the  case  of  McCombie  vs.  Davis,  6  East,  538,  a  broker, 
who  had  been  in  the  habit  of  dealing  in  tobacco  on  his  own 
account,  purchased  a  quantity  of  it  in  his  own  name,  and 
had  it  entered  as  his  own  in  the  king's  warehouse.  He  sub- 
sequently pledged  the  tobacco  as  his  own  property,  and  for 
valuable  consideratioti,  to  the  defendant,  against  whom  the 
real  owner,  on  whose  account  the  original  purchase  was 
made,  brought  trover.  The  questioti  here  presented  was, 
whether  the  owner  of  goods,  who  has  entrusted  them  to  the 
possession  of  an  agent,  under  circumstances  whichr  will  ena- 
ble the  agent  to  impress  other  parties  with  the  belief  that  he 
is  the  owner,  will  be  bound  by  the  contracts  of  the  agent, 


APPEALS  IN  EaUlTY. 


Charleston,  April,  ISGO. 


and  the  ('onrt  detprruined  that,  in  the  absence  both  of  prop- 
erty and  anthorit}^  in  the  broker  who  had  made  the  pledge, 
the  jihaintilF  was  entitU^d  to  maintain  his  action.  In  this 
case,  as  in  the  case  of  Pickering  vs.  Busk,  an  entry  was 
made  of  the  jjroperty,  on  the  books  of  the  warehonse,  in  the 
name  of  the  agent;  bnt  with  this  great  difTerence  between 
the  cases,  that  in  Pickering  vs.  Busk,  the  entry  was  made  by 
the  owner,  in  McConibie  vs.  Davis,  tlie  entry  was  the  act  of 
the  agent. 

In  Guerrdro  vs.  Pcik,  3  Barn,  and  Aid.,  61G,  5  Eng.  Com. 
Law,  399,  the  plaintiffs  entrnsted  Bnrmeister  &  Vidal,  mer- 
chants, in  London,  with  twenty-five  pipes  of  wine,  and  a 
general  anthority  to  sell.  Bnrmeister  &  Vidal  bartered  the 
wine  with  the  defendants  for  a  qnantity  of  rnm.  The  de- 
fendants did  not  know  that  Bnrmeister  Sc  Vidal  were  merely 
factors,  bnt,  upon  an  action  brought  for  the  recovery  of  the 
wine,  tipon  the  ground  that  the  anthority  of  the  agent  was 
to  sell  and  not  to  barter,  the  Conrt  held  that  the  plaintiff 
con  Id  recover. 

To  the  same  effect  see  also  Monk  v<.  Wkittenhunj;,  3  Barn, 
and  Adol.,  4S4  ;  Taylor  vs.  Kijmer,  3  Barn,  and  Add.,  320; 
.Indrews  vs.  Dietrich,  14  Wend.,  31. 

On  the  sixth  page  of  the  printed  decree,  the  Chancellor 
says,  that  the  provision  of  the  charter  of  the  State  Bank 
"  that  the  stock  of  the  bank  shall  be  assignable  and  transfer- 
able according  to  such  regnlations  as  may  be  instituted  in 
that  behalf  by  the  directors,"  was  "  intended  for  the  conven- 
ience, proleciion  and  security  of  the  bank,  and  it  is  to  give 
the  bank  notice  and  infcjrmation  as  to  who  are  the  stock- 
holders;" and  "that  the  transfer  of  stock  by  the  owner, 
though  not  in  accordance  with  the  form  prescribed  by  law, 
will  pass  all  the  right  of  the  shareholder  in  equity,  if  not  in 
law."  To  this  it  may  be  answered,  that  it  is  difficult  to  per- 
ceive in  what  way  the  provision  of  (he  charter  referred  to 
can  conduce  to  the  convenience,  protection  or  security  of  the 
bank,  or  inform  them  who  are  the  stockholders,  if,  as  in  the 


37G  ■  APPEALS  IN  EaUITY. 

State  Bank  vs.  Cox  &  Co. 

present  instance,  the  certificate  of  stock  could,  without  the 
knowledge  of  the  bank,  be  floating  over  the  continent  of 
Europe  for  three  years,  the  property  of,  it  may  be,  a  dozen 
different  proprietors,  conveying  at  each  transfer  the  title  to 
the  shares  in  equity,  if  not  in  law.  If  by  the  word  "  trans- 
fer^  used  by  the  Chancellor,  he  meant  anything  done  by 
the  person  in  whose  name  the  stock  stood  on  the  books  of 
the  bank,  in  consequence  or  furtherance  of  a  contract  proved 
with  him,  or  a  consideration  paid  to  him,  the  law  undoubt- 
edly is  as  lie  has  stated  it.  But,  if  by  the  word  "  transfer,^^ 
lie  means  merely  the  passing  or  delivery,  or  the  possession  of 
the  certificate  of  stock,  without  proof  of  any  contract  or  con- 
sideration, he  has  overlooked  what  was  decided  in  the  cases 
of  Dunn  vs.  The  Cofumercial  Bank,  11  Barb.,  581,  and  Combs 
vs.  Hodge,  21  How.,  359,  and  is  amply  supported  by  other 
authority,  that  the  naked  possession  of  the  certificate  and 
power  of  attorney,  without  proof  of  consideration  paid  to,' or 
contract  made  with  the  owner  of  the  stock,  is  no  evidence  of 
title.  The  question  has  been  made  in  a  number  of  instances, 
but  it  is  very  important  to  remark,  that  in  every  case  in 
which  it  has  been  decided  that  the  holder  of  the  certificate 
was  entitled  to  the  shares  without  the  formality  of  a  transfer 
on  the  boo/cs  of  the  corporation,  a  consideration  has  been 
proved  to  have  been  paid  to  the  former  owner  of  tfie  certifi- 
cate, or  a  contract  made  with  fiim.  This  essential  condition 
has  escaped  the  Chancellor's  attention  throughout  the  whole 
of  his  decree. 

The  following  are  some  of  the  cases  which  have  been  and 
will  be  relied  on  to  prove  that  the  title  to  stock  will  pass  even 
although  there  had  beeti  no  transfer  on  the  books.  But  in 
all  of  them  it  will  be  seen  there  was  either  a  contract  proved 
or  a  consideration  received  by  the  owner.  In  the  United 
States  vs.  Vauglin,  3  Binney,  394,  the  question  was  between 
an  attaching  creditor  and  a  bona  fide  purchaser  for  valuable 
consideration,  to  whom  the  certificate  of  the  stock  and  a 
power  of  attorney  has  been  delivered,  although  as  yet  there 


APPEALS  IN  EaUITY.  :J77 

Charleston,  April,  1860. 

had  been  no  transfer  on  the  books  of  the  bank.  It  was  held 
that  the  attachment  wonld  not  lie.  Hnt  it  was  the  bona  fides 
of  the  transaction,  and  the  payment  of  the  pnrchase  money 
which  gave  the  pnrchaser  all  his  eqniiy. 

In  B(iJ)Je  of  Utica  rs.  Smallay  <^*  Bdrron,  2  Cowen,  770,  a 
person  had  been  called  as  a  witness  for  the  bank.  He  was 
objected  to  becanse  he  was  a  stockholder.  He  immediately 
made  a  transfer  of  all  his  shares  to  one  N.  Williams,  and  was 
called  again  as  a  witness.  He  was  again  objected  to,  on  the 
gronnd  that  the  transfer  was  not  complete,  not  having  been 
made  on  the  books  of  the  bank.  But  the  Court  held  that  he 
was  competent.  This  was  evidently  upon  the  gronnd  that 
the  assignment  thus  made  was  done  it]  pursuance  of  the  ex- 
press consent  and  contract  of  the  owner  of  the  shares. 

In  Turner  vs.  Marbleheud  Ins.  Co.,  10  Mass.,  476,  there 
was  a  bona  fide  sale  by  a  debtor  to  his  creditor,  and  the  Court 
said  that  such  a  sale  in  satisfaction  of  the  debt,  was  sufficient 
to  transfer  the  equitable  interest.  Here  the  debt  was  the  con- 
sideration. 

So  little  regard  do  the  banks  pay  to  the  possession  of  the 
certificate,  that  it  is  said  in  Angel  and  Ames  on  Corp.,  sec, 
565,  "A  person  to  whom  shares  have  been  bona  fide  trans- 
ferred, will  hold  them  without  any  certificate."  And  it  is  the 
common  and  constant  practice  to  issue  a  new  certificate  of 
stock  upon  affidavit  of  the  loss  of  a  former  one,  after  three 
months  advertisement  in  the  papers.  Now,  this  certificate 
and  power  of  attorney  had  been  three  years  and  three  montlis 
in  the  possession  of  Boldin,  without  the  knowledge  of  Sze- 
mere,  during  the  whole  of  which  time  the  bank  was  recog- 
nizing his  wife  as  the  owner  of  the  shares,  and  paying  her 
the  dividends.  Suppose  that  Szemore,  finding  tint  Kuht- 
mann  had  not,  as  he  thought,  the  certificate,  had,  after  six 
months  or  a  year,  or  even  two  years,  made  an  affidavit  of  the 
loss,  as  he  supposed,  of  the  certificate,  and  advertisement 
had  been  made  in  the  Charleston  papers,  of  which  Boldin,  in 
Paris,  might  very  probably  have  had  no  knowledge,  and  that 


378  APPEALS  IN  EaUITY. 

State  Bank  vs.  Cox  &  Co. 

then  a  new  certificate  had  been  issned  to  Szemere  ;  upon  the 
supposition  that  the  certificate  is  the  true  indicium  of  title, 
which  of  these  two  would  have  been  regarded  as  the  true 
one?  Could  the  fraudulent  concealment  of  the  certificate  by 
Boldin  have  given  him  any  title? 

Besides,  if  the  power  of  attorney  and  the  certificate  of  the 
shares  are  indicia  of  title  and  of  ownership,  they  must  have 
been  so  from  the  date  of  the  power,  November  1 1th,  1852. 
In  the  meantime,  and  until  the  14th  February,  1S5G,  the 
date  of  the  transfer  to  Messrs.  Cox  &  Co.,  a  period  of  three 
years  and  three  months,  what  had  become  of  the  dividends 
of  the  shares?  The  certificate  still  at  that  date,  in  the  name 
of  Mdme.  Szemere,  was  proof  that  the  shares  had  been  un- 
transferred  on  the  books  of  the  bank,  and,  of  course,  that 
she  alone  could  receive  the  dividends.  If,  according  to  the 
Chancellor's  view,  the  mere  delivery  of  the  certificate  was  a 
disposal  of  the  shares,  what  right  could  she  have  to  the 
dividends?  This  severance  of  the  right  of  the  shares  and 
the  right  of  the  dividends,  is  the  necessary  consequence  of 
the  idea  that  the  delivery  of  the  certificate  passes  the  title  to 
the  shares.  In  the  three  years  which  had  elapsed  since  the 
date  of  the  power,  six  dividends  had  accrued,  and  it  is  in 
proof  that  they  were  received  by  Mdme.  Szemere — they 
could  have  been  received  by  no  one  else.  If  the  delivery  of 
the  certificate  lias  the  consequences  contended  for,  six  persons 
may  have  been  the  owners  of  the  shares  without  having 
received  the  dividends.  Of  this  extraordinary  embarrass- 
ment Messrs.  Cox  &  Co.  must  legally  be  supposed  to  have 
been  informed. 

If  Szemere  had  been  curious  to  impress  upon  these  shares 
the  fact  that  his  wife  was  the  trne  legal  owner  of  them — if  he 
had  tasked  his  ingenuity  to  excite  investigation  and  challenge 
suspicion,  and  invite  and  warn  people  to  be  upon  their  guard, 
what  more  could  lie  do  than  he  has  done.  Not  only  did  the 
certificate  announce  that  it  was  his  wife  who  was  entitled  to 
the  shares,  not  only  does  it  contain  no  words  analogous  to 


APPEALS  IN  EQUITY.  379 

Charleston,  April,  ISGO. 

assigns,  not  only  does  it  say  that  the  shares  can  be  trans- 
ferred, not  in  Europe,  or  anywhere,  but  only  in  a  particular 
place,  and  according  to  the  directions  of  a  particular  body, 
but  it  was  accompanied  with  an  imperfect  power  of  at- 
torney— a  stale,  antiquated  power  of  attorney — n)ore  tiian 
three  years  old,  whose  very  dates  and  gaps  were  sufficient  to 
excite  the  alaru)  and  suspicion  of  any  man  wlio  was  not 
careless  as  to  how  he  might  ruin  and  embarrass  himself. 
And  this  is  called  arming  Boldin  with  all  the  indicia  of  title 
to  entrap  the  unwary.  Laying  aside  all  legal  considerations 
and  authorities,  there  is  not  a  single  witness  wlio  has  not 
expressed  himself  with  great  distrust  as  to  the  property 
which  he  thought  Boldin  had  in  this  certificate. 

In  the  opinion  of  the  Chancellor,  the  statement  made  by 
Mdme.  Szemere  in  her  answer,  that  she  delivered  the  certifi- 
cate of  the  shares  and  the  power  of  attorney  to  Boldin,  for 
the  purpose  of  his  sending  them  to  Kuhtmaiin  to  collect  the 
dividends,  is  an  absurdity,  which  is  inconsistent  with  the 
possession  of  Kuhtmann  of  another  power  of  attorney,  under 
which  all  the  dividends  had  been  received.  But  whatever 
may  have  been  the  motive  of  Mdme.  Szemere,  such  motive 
cannot  control  the  legal  effect  and  operation  of  the  certificate. 
If  her  acts,  of  themselves,  are  not  necessarily  illegal  and 
fraudulent,  the  mere  conjecture  and  surmise  of  their  absur- 
dity cannot  give  them  that  character.  The  intention  of 
Mdme.  Szemere  is  not  a  matter  of  any  proof  in  the  case,  it 
is  her  own  declaration  which  must  be  taken  as  she  states  it, 
or  not  at  all.  But  attention  to  the  imperfect  knowledge 
which  Mons.  and  Mdme.  Szemere  possess  of  the  English 
language  and  commercial  custom,  and  to  the  dates  of  the  two 
powers  of  attorney  and  the  certificate  of  stock,  would  have 
convinced  the  candid  and  impartial  mind  of  the  lamented 
Chancellor,  of  the  consistency  of  her  statement.  It  will  be 
seen  from  the  testimony  of  Mr,  Ravcnel,  and  from  the  tran- 
script by  Mr.  Jervey,  from  the  books  of  the  State  Bank,  that 
prior  to  July,  1852,  Mdme.  Szemere  was  entitled  to   lliirly 


380  APPEALS  IN  EQUITY. 

State  Bank  vx.  Gcx  &  Co. 

shares  in  the  hank.  The  dividends  in  these  shares  were  col- 
lected on  the  2d  July,  1S52,  hy  Kuhtmann,  under  the  power  of 
attorney  which  he  possessed,  dated  26tli  April,  1852.  The 
additional  shares,  which  are  the  suhject  of  this  suit,  were 
purchased  on  the  10th  of  July,  1852,  a  few  days  after  the  re- 
ceipt by  Kuhtmann  of  the  dividends  of  the  thirty  shares.  On 
the  11th  November,  I S52,  before  the  accrual  of  any  dividends 
on  the  recently  purchased  fifty  additional  shares,  the  second 
power  of  attorney  was  given  to  Boldin  to  be  sent  to  Kuht- 
mann in  time  for  the  collection  of  the  January  dividends  on 
the  fifty  shares.  Mdme.  Szemere  believing  that  without  this 
additional  power  of  attorney,  the  dividends  could  not  be  col- 
lected. That  the  power  of  attorney  is  to  transfer  and  not  to 
collect  the  dividends,  can  be  explained  from  their  imperfect 
knowledge  of  the  English  language  and  ignorance  of  busi- 
ness. The  whole  transaction  is  stated  in  the  answer  under 
the  sanction  of  their  oath,  with  the  unreservedness  of  persons 
who  prefer  to  rest  the  defence  of  their  right  upon  a  statement 
of  the  actual  occurrence  of  facts. 

If  the  supposition  of  the  Chancellor  be  correct,  that  the 
certificate  and  the  power  of  attorney  were  entrusted  by 
Mdme.  Szemere  to  Boldin  for  the  purpose  of  disposing  of 
them,  that  purpose  must  date  from  the  date  of  the  power  of 
attorney,  11th  November,  1852.  Yet  the  receipt  of  the  divi- 
dends, by  Mdme.  Szemere,  for  three  years,  would  show  that 
she  was  aware  that  during  the  whole  of  that  time  he  had  dis- 
regarded her  instructions.  It  is  not  usual  nor  natural  that 
public  securities  should  be  allowed  to  remain  for  three  years 
in  the  hands  of  an  agent  for  sale.  The  acquiescence  for  so 
long  a  time  in  the  conduct  of  an  agent,  is  presumptive  that 
that  conduct  is  in  pursuance  of  instructions,  rather  than  that 
instructions  have  been  given  contrary  to  the  continued  con- 
duct of  the  agent.  As  Mdme.  Szemere  continued  to  receive 
the  dividends  from  her  agent,  we  must  presume  that  the 
instructions  to  tliat  agent  were  rather  to  receive  and  pay  her 
the  dividends  than  to  sell  the  stock. 


APPEALS  IN  EaUlTY.  :WI 

Charleston,  April,  1S60. 

The  Chancellor  has  said  that  the  rule  of  the  French  law, 
which  it  was  contended  in  the  argument  upon  the  circuit, 
should  govern  the  transfer  or  pledge  hy  Boldin  to  Messrs. 
Cox  &.  Co.,  can  have  no  application  to  the  case,  because,  ac- 
cording to  INIr.  Justice  Story,  in  his  Conflict  of  Laws,  ch.  19, 
sec.  3o3,  3S3,  an  exce|)tion  to  the  general  rule,  that  the  laws 
of  the  owner's  douiicil  should,  in  all  cases,  determine  the 
validity  of  every  transfer  of  personal  property,  must  be  made 
with  regard  to  certain  stocks  or  funds,  "  such  as  bank  or  in- 
surance stocks,  turnpike,  canal  and  bridge  shares,  and  other 
incori)orcal  property,  owing  its  existence  to,  or  regulated  by 
peculiar  local  laws."  The  legal  title  to  personal  property  of 
this  character  is  not  acquired  unless  the  local  requirements 
are  complied  with.  Now,  in  the  present  instance,  the  local 
requirements  are,  that  the  stock  should  be  transferred  on  the 
books  of  the  State  Bank  by  Mdme.  Szemere  or  her  attorney. 
The  application,  therefore,  of  the  rule  as  laid  down  by  Mr. 
Justice  Story,  taken  in  connection  with  the  idea  so  often  ex- 
pressed in  the  circuit  decree,  that  the  entrusting  Boldin  wiih 
the  certificate  of  stock  and  the  power  of  attorney,  was  "in- 
vesting him  with  all  the  indicia  of  property  and  ownership," 
and  "arming  him  with  the  legal  title,"  presents  this  dilemma. 
If  the  possession  of  the  mere  certificate  and  power  of  attor- 
ney by  Boldin  was,  by  reason  of  the  requirement  of  the  local 
law,  the  lex  loci  rei  sila',  not  such  an  investment  of  absolute 
title  in  liim  as  to  give  application  to  the  Frencli  law,  the  lex 
domicilii,  then  the  possession  of  the  mere  certificate  and 
power  of  attorney  was  not  such  an  "arming  him  with  the 
legal  title"  as  was  sufficient  to  enable  him  to  deceive  any 
one,  or  impose  himself  upon  any  one  as  the  owner  of  the 
.sjiarcs.  On  the  other  hand,  if  the  mere  possession  of  the 
certificate  and  the  power  of  attorney  was,  in  the  words  of  the 
Chancellor,  "  investing  him  with  all  the  indicia  of  pro[)erly 
and  ownership,"  and  was  "arming  him  with  the  legal  title," 
then  the  requirements  of  the  local  law,  the  lex  loci  rei  silx 
were  unnecessary  to   the   perfection   of  the  absolute  title   in 


382  APPEALS  IN  EaUITY. 

State  Bank  vs.  Cox  &  Co. 

him,  and  the   French   law,  the  lex  domicilii,  should   have 
application  and  govern  the  case. 

Since  the  delivery  of  the  decree  by  Chancellor  Dargan,  the 
case  of  the  Union  Mutual  Insurance  Company  vs.  The  State 
Bank  has  been  decided  in  the  Circuit  Court  of  the  United 
States  for  this  State.  His  Honor,  Judge  Magrath,  there  ex- 
presses the  opinion  that  certificates  of  bank  stock  are  nego- 
tiable instruments.  The  facts  were  these:  F.  S.  Lathrop, 
being  in  possession  of  a  certificate  of  stock  in  the  State  Bank 
certifying  that  E.  W.  Bancroft  was  entitled  to  forty  shares  in 
that  institution,  and  of  a  blank  power  of  attorney  executed 
by  Bancroft,  left  the  certificate  and  the  power  with  the  plain- 
tiff as  a  security  for  a  loan  made  to  him,  the  said  Lathrop. 
Some  time  afterwards,  the  plaintiff  presented  the  certificate 
at  the  bank  and  requested  a  transfer  of  the  said  shares  to  its 
own  name.  The  bank  refused,  on  the  ground  that  it  had  a 
lien  on  the  shares,  in  consequence  of  the  indebtedness  of 
Bancroft  to  it.  The  action  was  brought  to  recover  damages 
in  consequence  of  this  refusal.  It  is  to  be  observed  that  the 
transfer  here  was  refused,  not,  as  it  was  in  Dunn's  case,  in 
11  Barb.,  581,  because  of  there  being  no  proof  of  any  con- 
sideration received  by,  or  contract  made  with  Bancroft,  the 
owner  of  the  shares;  nor  was  there  any  question  of  misap- 
propriation on  the  part  of  Lathrop.  Bancroft  seems  to  have 
acquiesced  in  the  fact  that  the  shares  had  been  bona  fide  dis- 
posed of  by  him  to  Lathrop.  He  laid  no  claim  to  them.  The 
single  question  was,  whether  a  bank  has  a  general  lien  upon 
the  shares  of  its  stockholders  for  their  indebtedness  to  it,  so 
that  no  transfer  can  be  made  to  other  persons  till  that  indebt- 
edness is  discharged.  In  determining  this  question,  the  nego- 
tiability of  certificates  of  bank  stock  was  discussed.  Judge 
Magrath  argues  for  the  negotiability  of  certificates  of  bank 
stock,  from  their  supposed  analogy  to  railroad  bonds,  payable 
in  blank,  no  payee  being  inserted.  He  refers  to  the  case  of 
White  vs.  The  Verrnont  and  Massachusetts  Railroad  Com- 
jnmy,  in    21    How.,  575,  where   it  was   decided    that   bonds 


APPEALS  IN  EaUITY.  383 

Charleston,  April,  1S60. 

issued  by  a  railroad  company,  payable,  in  blank,  to  a  citizen 
of  Massachusetts,  which  had  passed  through  several  inter- 
vening holders,  could  be  filled  up  by  a  citizen  of  New  Hamji- 
shire,  and  suit  be  maintained  upon  them.  In  applying  the 
principles  of  this  case  to  certificates  of  stock,  he  says  that 
"  the  prhiciple  laid  down  by  the  Court  would  be  applicable 
to  any  other  paper  possessed  of  the  same  or  similar  qualities, 
and  in  that  case,  as  has  been  seen,  in  testing  the  question  of 
negotiability,  the  Supreme  Court  directed  its  attention  to  the 
form  in  which  the  pnper  was  made,  as  indicative  of  the  inten- 
tion with  which  it  was  made,  and  to  the  mode  of  giving  cir- 
culation to  it,  and  then  made  reference  to  the  usage  and  prac- 
tice of  the  company  by  which  it  was  issued,  and  of  capitalists 
and  business  men,  and,  finally,  to  the  decision  or  recognition 
of  the  principles  applicable  to  such  case  by  Courts  and 
Judges." 

Now,  it  is  remarkable  that  at  the  same  term  of  the  Su- 
preme Court  at  which  this  case  of  JJ7iife  vs.  The  Vet^mont 
and  Massachuscils  Railroad  Company  was  decided,  in  which 
the  Court  gave  its  attention  to  the  negotiability  of  railroad 
bonds,  the  case  of  Combs  vs.  Hodge,  in  which  the  negotia- 
bility of  certificates  of  the  public  debt  of  Texas  was  discussed, 
was  also  decided;  and,  while  the  Court  held  that  the  railroad 
bonds,  issued  in  a  certain  form  and  for  certain  purposes, 
might  be  regarded  as  negotiable,  it  expressed  itself  with 
equal  distinctness  and  emphasis  as  to  the  non-negotiability 
of  the  'I'exas  certificates.  The  reason  of  this  is  ap[)arent, 
for,  upon  the  very  principles  indicated  by  Judge  Magrath, 
there  can  be  no  comparison  or  analogy  between  that  class  of 
instruments  known  as  railroad  bonds  and  that  known  as 
certificates  of  stock.  They  are  not  possessed  of  the  same  or 
similar  (|ualities.  They  are  dilTerent  in  their  form,  in  their 
intention,  in  the  mode  by  which  circulation  is  given  to  tliem, 
and  in  the  usage  and  j)ractice  of  the  companies  by  which 
they  are  issued.  It  was  the  recognition  of  these  differences 
which   guided   the   Supreme  Court   in   their  decision   in   the 


«84  APPEALS  IN  EaUlTY. 

State  Bank  vs.  Cox  &  Co. 

two  cases,  and  which  alone  can  make  them  consistent.  A 
railroad  bond,  such  as  was  the  subject  of  suit  in  fVhite  vs. 
The  Vermont  and  Massachusetts  Railroad  Company,  differs 
from  a  certificate  of  tlie  public  debt  of  Texas,  and  from  a  cer- 
tificate of  the  State  Bank  stock,  which  is  similar  to  the  Texas 
certificate  in  its  form.  One  is  an  obligation  for  the  payment 
of  money  to  a  blank  payee,  his  assigns  or  order.  The  other, 
the  bank  certificate,  simply  certifies,  without  any  words  of 
assignment,  that  a  named  individual  is  entitled  to  an  unas- 
certained division  of  the  profits  of  a  franchise.  Judge 
Magrath  is  of  the  opinion  that  the  blank  power  of  attorney 
which,  in  the  case  before  him,  was  printed  at  the  foot  of  the 
certificate  of  stock,  is  a  part  of  the  certificate,  and  he  would, 
apparently,  infer  that  some  negotiable  quality  was  imparted 
to  the  certificate  from  such  an  incorporation  of  the  power 
into  it.  But  it  is  surely  not  the  case  that  the  power  of  attor- 
ney, so  often  printed  at  the  foot  or  on  the  back  of  certificates 
of  stock,  is  any  part  of  such  instruments,  or  enters  at  all  into 
the  contract  made  by  them.  Such  blank  powers  of  attorney 
are  only  printed,  where  they  are,  for  the  convenience  of  the 
holder.  They  are  not  contained  under  the  seal  of  the  corpo- 
ration, or  the  signature  of  the  president,  and  add  nothing  to 
the  character  of  the  instrument,  any  more  than  if  they  were 
written  on  a  separate  piece  of  paper. 

A  railroad  bond  also  differs  from  a  certificate  of  bank  stock 
in  the  intention  with  which  it  is  issued  ;  in  the  mode  by 
which  circulation  is  given  to  it ;  and  in  the  usage  and  prac- 
tice of  the  companies  by  which  they  are  issued.  One  is  a 
security  for  money,  issued  in  a  negotiable  form,  for  sale,  in 
order  to  seek  a  market,  and  to  raise  money,  and  is  satisfied 
by  the  payment  of  money.  The  other  is  simply  a  muniment 
of  title  and  evidence  of  the  owner's  right  to  a  given  share  in 
the  property  and  franchises  of  the  corporation,  and  is  designed 
only  to  afford  a  steady  investment  for  capital,  not  for  circula- 
tion.    These  differences  are  not  slight,  and  being  founded  in 


APPEALS  liN  EaUITY.  :}s5 


C-hnrle^;lon,  A  aril.  ISdO. 


the  nature  of  the   two  classes  of  instriinients,  are  quite  suffi- 
cient to  destroy  any  anah)gy  hetween  them. 

Judire  Magrath  is  also  of  the  opinion  that  a  certificate  of 
stock  in  the  State  Bank  is  a  negotiable  inslrunient,  in  conse- 
quence of  the  section  of  the  Act  of  Incorporation,  which 
declares  "that  the  stock  of  the  hank  shall  be  assignable  and 
transferalile,  according  to  such  regulations  as  may  be  insti- 
tuted in  that  behalf  by  the  directors."  His  argument  is, 
"  that  when  the  law  gives  tlie  stock  an  assignable  quality, 
and  does  not  at  the  same  time  qualify  the  effect  of  such  an 
assignuHMit,  it  thereby  makes  it  negotiable." 

I'he  proposition  of  Judge  Magrath  in  this  part  of  his  argu- 
ment is,  that  if  without  qualification  a  statute  affirm,  in  refer- 
ence to  a  particular  subject,  the  same  qualities  which  the 
subject  already  possessed  by  the  general  or  common  law 
without  the  statute,  the  inference  must  be  that  other  and  dif- 
ferent qualities  must,  by  the  force  of  the  statute,  be  conferred 
upon  the  subject,  although  the  language  used  be  an  exact 
legal  definition  or  description  of  the  qualities  or  capacities 
possessed  before  the  i)assing  of  the  statute.  If  this  be  so,  if 
a  statute  cannot  repeat  or  declare  the  common  law,  without, 
at  the  same  time,  making  new  law  and  dilfercnt  law  frorn 
that  which  it  repeats  or  declares,  there  can  be  no  such  thing 
as  a  "  declaratory  or  atfirmative  statute." 

But  it  has  escaped  Judge  Magrath's  attention  that  there  is 
in  this  section  of  the  Act  of  Incorporation  the  very  qualifica- 
tion which,  in  his  own  opinion,  would  make  an  exc(q)tion  to 
even  his  own  proposition.  The  stock  was,  as  he  says,  assign- 
able at  common  law,  and  the  statute  says  that  it  should  be 
assignalile  and  transferable  according  to  such  regulations  as 
the  directors  should  institute.  What  is  this  but  a  qualifica- 
tion—  a  limitation  of  its  assignaliility  ?  If,  by  law,  it  was 
assignable  generally,  and  by  the  statute  it  was  assignable  as 
the  dircfttors  may  institute,  surely  this  is  a  qualification  of 
the  assignability.  ^V||atever  regulations  were  instituted  by 
the  directors  became  incorporated  into  the  statute,  and  had 
26 


386  APPEALS  IN  EQUITY. 

State  Bank  vs.  Cox  &  Co. 

the  same  force  and  effect  as  if  they  had  been  specially  desig- 
nated. When,  therefore,  the  directors  said  that  the  stock 
should  be  transferred  only  on  the  books  of  the  bank,  it  was 
the  same  thing  as  if  the  statute  had  so  regulated  the  assign- 
ability. The  effect  of  the  enactment  was  to  declare  that  the 
stock,  which  by  law  was  assignable  generally,  should  be 
assignable  only  on  the  books  of  the  bank.  There  can  be  no 
doubt  but  that  this  was  intcmded  to  be,  not  an  extension,  but 
a  restraint  upon  the  transferability  of  the  stock.  See  the 
remarks  of  Chancellor  Walworth,  22  Wend,,  353,  quoted  in  a 
former  part  of  this  argument. 

It  remains  to  discuss  the  position,  that  Madame  Szemere, 
having  invested  Boldin  as  agent,  with  the  power  to  sell,  she 
is  bound  by  the  acts  of  his  agency. 

The  Chancellor,  on  the  8tli  page  of  the  circuit  decree, 
assumes  it  as  beyond  dispute,  that  Boldin  was  the  agent  of 
Mons.  and  Mdme.  Szemere,  for  the  purpose  of  selling  and 
disposing  of  the  shares,  and  being  thus  authorized,  he  says 
that  the  breach  of  trust  committed  by  him  did  "  not  consist 
in  the  act  of  selling,  but  in  not  accounting."  He  also  says, 
that  it  is  vain  for  Madame  Szemere  to  say  that  Boldin  was 
"not  to  sell  under  the  power,  but  to  transmit  it  to  Kuhtmann  ; 
if  that  be  true,  it  was  a  secret  arrangement  between  them, 
and  not  binding  npon  third  parties."  These  conclusions  of 
the  Chancellor  could  not  be  denied,  if  it  were  established  as 
niidoubtedly  as  he  supposes  that  Boldin  was  Mdme. Szernere's 
"  agent  to  sell."  But  this  is  far  from  being  the  case,  for 
against  the  fact  of  Boldin's  agency,  the  following  propositions 
can  be  maintained: 

1.  That  the  power  of  attorney  being  in  blank,  and  no  con- 
sideration being  paid  to  Mdme.  Szemere  by  Boldin,  the  meie 
possession  of  the  papers  conferred  no  authority  upon  him  to 
complete  them  by  the  insertion  of  his  own  name,  or  to  con- 
vey a  like  authority  to  any  one  else  by  a  simple  transfer  of 
the  documents. 


APPEALS  IN  EaUITY.  887 

Charleston,  April,  1860. 

2.  Tluit  even  if  he  had  anthnrity  to  complete  the  papers, 
the  power  is  to  "  transfer,''  and  not  to  "  sell." 

3.  That  even  if  he  had  the  power  to  "sell,"  his  transactions 
with  Messrs.  Cox  &  Co.  are,  as  the  Chancellor  has  said,  hy 
way  of  hypothecation  or  [)ledge  for  his  own  indehtedness, 
and  so  not  warranted  hy  a  power  to  sell. 

4.  Tliat  the  paper  in  Boldin's  ])ossession  was,  after  all,  only 
a  power  of  attorney,  not  coupled  with  any  interest,  and  so 
revocaiile  at  any  nion)ent  hofore  exccntion. 

If  either  one  of  these  propositions  can  be  snccessfnily  main- 
tained, the  conclnsion  of  the  Chancellor  that  the  instrnctions 
of  Mdme.  Szemere  to  IJoldin  to  transmit  the  certificate  and 
power  to  Knhtmann  are  not  binding  upon  third  persons,  and 
that  Boldin's  breach  of  trnst  did  not  consist  in  the  act  of  sell- 
ing, but  in  not  accounting,  must  fall  to  the  ground. 

As  to  the  first  proposition,  that  the  power  of  attorney  bein^ 
in  blank,  and  no  consideration  being  paid  to  Mdme.  Szemere 
by  Boldin,  the  mere  possession  of  the  papers  conferred  no 
authority  upon  him  to  complete  ilicm  by  the  insertion  of  his 
own  name,  or  to  convey  a  like  authority  to  any  one  else  by  a 
simple  transfer  of  the  documents.  No  man  can  be  bound  by 
a  contract  which  he  has  not  been  proved  to  have  made.  If  a 
man  execute  a  paper  with  blanks,  before  those  blanks  can  be 
filled,  it  must  be  proved  how  he  has  authorized  tfiat  they 
should  be  filled.  This  rule  is  so  strict,  that  in  England  it  has 
been  decided  that  the  authority  to  fill  up  the  blanks  in  a  deed 
must  be  proved  by  an  instrutnent  as  solemn  as  the  deed  itself, 
and  that  it  cannot  be  done  by  parol.  Hobhiewhite  vs.  Mc- 
Morinc,  6  M.  &  W.,  200.  In  our  State,  the  rule  has  been  so 
far  relaxed,  as  to  permit  the  blanks  in  a  deed  to  be  filled  by 
parol  authority;  but  still,  some  authority,  beyond  the  mere 
possession  o(  the  papers,  is  necessary.  Gonrdin  vs.  Corn- 
viandcr  Sr  Head,  n  Rich,,  497.  An  exception  has  also  been 
made  to  the  rule  in  the  instances  of  promissory  notes  and 
bills  of  exchange.  See  Russell  vs.  Lans^.siajf^  2  Doug.,  514 
and  other  cases  which  have  followed  that  decision,     lint  the 


:W'^  APPEALS  IN  EaUITY. 


Slate  Bank  v.s.  Cox  &  Co. 


principle  of  these  cases  depends  upon  the  character  of  the 
instruments.  It  is  from  their  negotiability  that  the  law  raises 
a  presumption  not  only  of  a  consideration  paid,  and  of  an 
intention  of  an  nncontrolled  circulation,  but  of  an  implied 
autFiority  in  furtherance  of  their  design  to  fill  up  the  blanks 
which  may  be  found  in  them.  But  this  implication  is  con- 
fined to  instruments  of  this  description,  and  no  case  can  be 
found  which  has  decided  that  the  holder  of  any  other  than  a 
negotiable  instrument  is  permitted  to  fill  up  blanks,  unless  he 
prove  either  express  authority  to  do  so,  or  a  consideration 
paid  by  him  to  the  maker  of  the  instrument,  from  which 
authority  may  be  equitalily  implied.  This  is  piecisely  the 
point  wliicii  has  been  ruled  in  Dunn  vs.  The  Com/nercial 
Bank  of  Buffalo,  W  Barb.,  581,  and  confirmed  by  Coombs 
vs.  Hodge,  21  How.,  398. 

As  to  the  second  proposition,  that  even  if  Boldin  had 
authority  to  complete  the  papers,  the  power  is  to  "  transter," 
and  not  to  "  sell."  The  word  to  "  transfer"  is  not  a  syno- 
nyme  witli  the  word  to  "sell."  The  difference  in  their 
signification  is  constantly  recognized  in  business  transac- 
tions. "To  sell"  involves  the  idea  of  bargain  and  negoti- 
ation, which  is  comjileted  by  the  act  of  transfer.  One  refers 
to  an  act  of  contract,  the  oilier  to  tlie  mere  execution  of  the 
title. 

If  it  needed  anything  to  make  it  appear  what  "  transfer" 
means  in  the  present  instance,  it  is  to  be  found  in  the  certifi- 
cate which  accompanied  the  power  of  attorney.  In  the  cer- 
tificate of  stock  it  is  a  part  of  the  stipulation  that  the  shares 
are  "  transferable  only  at  the  bank."  Here  a  definite  and 
precise  meaning  is  attached  to  the  word  transferable,  and  its 
interpretation  limited  to  the  act  to  be  done  at  the  bank.  In 
the  power  of  attorney,  which  was  fasttuied  by  a  wafer  to  tliis 
certificate,  the  same  word,  "transfer,"  occurs.  It  is  the  only 
word  occurring  which  directs  what  is  to  be  done  with  the 
shares.  Now,  it  is  impossible  to  say  that  the  same  meaning 
should   not  be   assigned   to   the  same  words  in  the  different 


APPEALS  IN  EaUITY.  'W.) 

Cliarlesion.  April,  IS60. 

iiistruinents ;  (hey  must  bo  similarly  coiistniod  ;  fhcy  i^nmiot 
be  madn  to  bear  difrcrciit  mrauiiigs.  "  Traiisfcr,''  in  iho 
power,  cannot  mean  to  sell  in  l^ondon,  or  Paris,  or  anywliere 
— and  "  transfcM-able,"  in  the  certilinate,  be  confined,  as  it  is 
by  its  context,  to  an  act  to  be  done  only  at  the  bank. 

As  to  the  third  proposition,  that  even  if  he  liad  power  "to 
sell,"  his  transactions  witli  Messrs.  Cox  &  Co.,  are,  as  the 
Chancellor  has  said,  by  way  of  hypothecation  and  pledge  for 
his  own  indebtedness,  and  so  not  warranted  by  the  power  to 
sell. 

Nothing  can  be  clearer  than  tiiis,  that  an  agent  to  sell  lias 
no  authority  to  jiledge  for  his  own  debts.  No  point  can  be 
more  fully  sustained  by  authority.  The  case  of  De  Bou- 
chnunt  vs.  GoULsmid,  5  Ves.  ,Ir.,  210,  is  singularly  similar  in 
its  circumstances,  and  will  be  sulficient.  The  plaintiir  and 
his  wife  were  entitled  to  one  hundred  and  ninety-one  shares 
in  a  London  Assurance  Company,  and  they  executed  a 
power  of  attorney  to  Muilman  &  Co.  to  "  sell,  assign  and 
transfer  all  or  any  of  the  said  shares."  Muilman  &  Co., 
being  ijidebted  to  the  defendants,  pledged  to  them  a  part  of 
the  shares  belonging  to  the  plaintiff,  and  a  transfer  was  actu- 
ally made.  IVruilman  &  Co.  failed,  and  the  bill  was  brought 
for  a  re-transfer  of  the  shares  and  an  account  of  tiie  divi- 
dends, upon  the  ground  that  an  authority  to  sell  did  not  per- 
mit a  pledge  of  the  agent  for  his  own  di^bt.  The  Lord  Ci.an- 
cellorsaid:  "It  has  been  settled  with  regard  to  goods,  and 
there  is  no  doubt  that  if  goods  are  consigned  to  a  factor  to 
sell,  he  canmit  pledge  them.  It  must  be  a  bona  fide  sale  for 
valuable  consideration.  The  defendants  are  certainly  wrong 
in  point  of  law,  I  take  it  not  merely  to  be  a  principle  of  the 
law  of  England,  but  of  tlie  civil  law,  that  if  a  persoji  is  act- 
ing ex  maiidaln,  those  dealing  with  him  must  look  to  his 
mandate."  The  decree  was,  that  the  defendant  re-transfer 
the  stock,  and  pay  the  dividend  and  costs. 

The  fourth  proposition  is,  that  the  power  of  attorney  in 
Holdin's    possession    n(»t    being    coupled   with   an   interest   is 


:^90  APPEALS  IN  EQUITY. 


State  Bank  v.s.  Cox  &  Co. 


revocable  at  any  momeiil  before  execution.  The  shares  are 
yet  nntransferred  on  the  books  of  the  bank,  and  still  stand  in 
Madame  Szeniere's  name.  Up  to  the  point  of  transfer, 
Messrs.  Cox  &  Co.  took  the  shares  at  their  peril.  Before  the 
transfer  which  the  power  authorized,  Messrs.  Cox  &  ('o.  have 
been  informed  of  the  revocation,  and  the  power  remains  void 
in  their  hands. 

Memmin^er,  De  Saussure,  contra. 
Mitchell,  in  reply. 

The  opinion  of  the  Court  was  delivered  by 
Johnstone,  J.  This  case  has  been  pressed  upon  the  Court 
as  if  I  he  transfer  of  the  scrip  by  Boldin  was  made  in  the 
character  of  agent,  and  by  way  of  pledge;  whereas,  u})on  a 
careful  examination  of  the  facts,  the  scrip  was  represented 
and  accepted  as  Boldin's  own  property:  and  it  was  a  sale, 
and  not  a  pledge.  If  the  scrip  was  put  into  Boldin's  hands 
by  Madame  Szemere  under  any  restrictions,  it  was  her  duty 
to  liave  proved  what  they  were  ;  but  the  only  fact  that  bears 
on  her  transfer  to  him  is,  that  she  made  a  general  delivery, 
with  an  indefinite  power,  in  blank,  before  Mr.  Consul  Good- 
rich. 

This,  according  to  the  general  course  of  fair  business, 
exhibited  Boldiii  as  the  owner:  and  so  he  acted.  Indeed,  it 
it  appears  that  from  that  time  he  received  the  dividends, 
whicli  was  further  proof  of  ownership. 

The  only  formality  omitted  was  that  of  filling  up  the 
blanks,  and  the  taking  out  new  scrip. 

It  is  well  known  that  Courts  of  law  as  well  as  Courts  of 
equity,  recognize  the  title  of  a  person  who  purchases  a  secur- 
ity in  the  course  of  a  fair  business,  although  it  be  not  nego- 
tiable. If,  for  instance,  a  note  payable  to  A,  be  transferred 
by  him  to  B,  the  latter  is  recognized  as  legal  holder  of  the 
paper,  and  although  he  may  be  obliged  to  use  the  name  of 


APPEALS  IN  EaUlTY.  391 

Charle.-'loi),  April,  ISGO. 

A,  ill  suing  for  the  dt^bt,  A  will  not  be  allowed  to  release  the 
action.  That  the  security  is  liable,  in  the  hands  of  B,  to  the 
equities  between  the  maker  and  the  original  payee,  may  be 
conceded.  That  does  not  touch  the  point  now  under  con- 
sideration, which  exclusively  concerns  the  property,  the 
security  itself,  as  between  the  original  payee  and  one  to 
whom  he  has  transferred  it  without  formal  assigninenl.  This 
morning  the  Chief  delivers  an  opinion,  in  the  case  of  Salas 
vs.  Carj,  that  the  assigntnerit,  comprehending  not  only  tangi- 
ble property  but  choses,  enables  the  assignee  to  sue  in  his 
own  name. 

Whoever  comes  fairly  by  a  security,  as  Cox  did  in  this 
case,  in  the  course  of  business,  is  entitled  to  hold  it  against 
him  who  passed  it,  or  enabled  another  to  pass  it  to  him. 

It  has  been  argued  that  the  inscription  of  Madame  S.'s 
name  in  the  scrip  notified  Cox  of  her  right,  so  as  to  oblige 
him  to  eiifjuire  of  her.  Hut  the  plain  authority  was  to  trans- 
fer, wliicli  (no  gratuity  being  reasonaiily  intended)  was  a 
power  to  sell:  and  a  sale  was  made.  In  a  large  proportion 
of  cases,  especially  when  such  scrip  is  carried  abroad,  and 
considerable  time  has  elapsed  from  the  original  issue,  it  has 
passed  through  many  hands;  so  that  the  greater  has  been 
the  efllux  of  time,  the  less  reason  has  a  buyer  to  suppose  that 
the  ownership  remains  in  the  original  party,  and  the  more 
insufficient  is  the  guide  for  eiupiiry. 

Boldin  had  been  put  in  possession  o{  this  scrip,  with  an 
indcfinit(!  power  of  disposition,  by  Madame  Szemere,  and  if 
he  was  not  the  owner  (of  which  ownership  there  is  much 
evidence)  she  exhibited  him  in  a  light  which  enabled  him  to 
lay  claim  to  the  stock.  Under  such  circumstances,  ('(piity 
would  not  permit  her  to  avail  herself  of  the  dry  skeleton  of 
title,  which  yet  stands  formally  in  her  name,  to  defeat  him 
whom  she  has  contributed  to  deceive.  The  transfer  should 
have  been  formally  made  ;  and  this  Court  will  not  take 
notice  of  that  as  undone  which  oimhl  to  have  been  done.    It 


'.Wi  APPEALS  IN  EaUlTY. 

State  Bank  vs.  Cox  &  Co. 

will,  ill  all  f irinaj  matters,  execute  agreements  in  good  faith, 
and  as  they,  in  fairness,  should  he  carried  out. 

It  is  ordered,  that  tiie  appeal  he  dismissed,  and  the  decree 
affirmed. 

Wardlavv,  J,,  concurred. 

O'Neall,  C.  J.,  dissenting,  said  :  That  the  majority  con- 
cede that  the  legal  estate  in  the  hank  stock  (fifty  shares)  is  in 
Madame  Szemere,  the  defendant.  They  hold,  as  I  do,  that 
the  shares  are  not  negotiable  by  delivery,  or  by  any  writing 
except  that  which  operates  to  cause  them  to  he  transferred 
on  tlie  books  of  the  bank.  In  this  case,  there  has  been  no 
transfer  on  the  books  of  the  bank,  and,  of  course,  the  shares 
remain  in  the  name  of  Madame  Szemere. 

But,  it  is  contended  that  the  other  defendants,  Hermann 
Cox  &  Co.,  who  hold  the  scrip,  and  blank  power  of  attoriif>y, 
which  they  received  from  Boldin,  are,  in  equity,  entitled  to 
be  reimbursed  their  advances  out  of  the  stock.  This  claim 
is  no  more  than  that  they  are  entitled  to  hold  the  shares  on 
hypothecation;  and  so  the  Chancellor's  decree  allows. 

If  they  had  purchased,  and  could  shew  that  Madame  Sze- 
iDere  intended  to  sell,  and  placed  the  stock  and  power  in 
Boldin's  hands  for  that  purpose,  then  an  equity  would  arise 
to  ]ierfect  the  sale.  But  there  is  no  such  proof  Boldin 
called  the  stock  his  own,  and  sold,  or  pledgfKl  it  as  such,  to 
raise  money  for  his  own  use.  Not  a  dollar  has  been  traced 
to  Madame  Szemere's  use.  How  an  equity  against  her, 
under  such  circumstances,  can  arise,  is  what  I  cannot  under- 
stand. These  views  are  so  fully  sustained  by  the  recent  New 
York  case,  7'he  Mechanics  Bank  vs.  The  New  York  and  New 
Haven  Railroad  Company,  13  N.  Y.  Reports,  (3  Kernan)  599 
to  641,  that  I  may  refer  to  the  decision  there  for  an  answer 
to  all  the  grounds  assumed  for  Cox  &  Co. 

So,  too,  I  concur  fully  in  the  excellent  argument  of  Mr. 
Recorder  Pringle,  and  beg  leave  to  r(ifer  to  and  adopt  it,  as 
fully  illustrating  the  grounds  oti  which  I  place  my  dissent. 

*^ppeal  dismissed. 


APPEALS  IN  EQUITY.  '.VS.) 


Cliiirleslon,  April,  ISrtO. 


Wade  J.   Markley  and  Wife  vs.   Daniel   M.  Singletary. 
Limifatinn  of  Estates — Separate    Estate — Parties — Infant. 

a  father  gave,  by  deed,  a  nefrro  girl,  to  his  daiipliter  C,  "for  her  support,  diirinif 
her  natural  life,  and  at  her,  the  said  C.'!"  death,  the  said  negro  grirl,  together 
with  her  future  is.^iie  and  inciease,  shall  he  the  properly  of  the  issue  of  the  said 
C." — Ilfld.  that  C.  took  an  estate  for  life,  with  a  v;ilid  limitation  to  her  issue  as 
purehasers. 

A  gift  to  a  married  daughter  "lor  her  support  during  her  natiirnl  life"'  creaies  a 
separate  estate  in  the  daughter — Stnible. 

A  liill  for  distribution  of  the  estate  of  an  infant  who  died  when  eleven  years  old. 
and  who  has  been  dead  near  twenty  years,  may  proceed  vrithoul  n)aking  an  ad- 
ministrator of  the  infant  a  parly. 

BETORE  INGLIS,  CH.,  AT  CHARLESTON,  FEBRUARY,  1S60. 

The  decree  of  the  Circuit  Court  is  as  follows: 
Inglis,  Ch.  Elislia  Mellard,  late  of  the  parish  of  St.  James, 
Goo.se  Creek,  on  20th  day  of  February,  A.  D.  1S30,  made 
and  duly  delivered  his  deed  of  gift  of  that  date,  the  disposing 
part  of  which  is  in  the  following  word.s,  to  wit:  "For  certain 
causes,  I  do  give  unto  Celia  Ann  Singletary,  a  certain  negro 
girl,  Sue,  together  with  her  future  issue  and  increase,  for  her 
support  during  her  natural  life,  and  at  her,  the  said  Celia 
Ann  Singletary's  death,  the  said  negro  girl  Sue,  together  with 
her  issue  and  increase,  shall  he  the  property  of  the  issue  of 
the  said  Celia  Ann  Singletary."  The  immediate  donee,  Celia 
Ann  Singletary,  was  the  grand-daughter  of  the  donor,  Elislia 
Mellard,  and  at  the  dale  of  the  gift,  was  the  wife  of  the  de- 
fendant, Daniel  M,  Singletary,  and  had  issue,  one  child, 
Elislia  Mellard  Singletary,  then  about  nine  months  old.  The 
girl  Sue  went  into  the  pos.session  of  the  defendant,  and  if  not 
recently  removed  fiy  him,  out  of  lln;  jurisdiction,  is  still  in 
his  possession,  as  is  also  her  son,  'I'oney,  the  only  issue  born 
to   her  since  the  gift.     Celia  Ann  Singletary  died    in  July, 


894  APPEALS  IN  EaUITY. 


Markley  vs.  Singlelary. 

A.  D,  183-5.  leaving  surviving  her,  her  said  husband  and  two 
children,  Elisha  Mellard  Singletary,  above  nanieiJ,  then  six 
years  old,  and  the  plaintiff,  Celia  Ann,  then  about  a  year 
old — the  former  of  these  two  ciiildren,  died  (intestate  of 
course)  in  June,  A.  D.  1840,  at  the  early  age  of  eleven  years, 
leaving  his  father  and  sister  as  the  only  distributees  of  any 
estate  he  was  possessed  of  or  entitled  to.  There  has  been  no 
grant  (jf  administration  on  the  personal  estate  of  the  mother, 
CeHa  Ann,  nor  on  that  of  the  son,  Elisha  Mellard.  The 
plaintiffs,  Wade  J.  Markley  and  Celia  Ann  Singletary,  the 
younger,  the  other  child  of  tlie  donee  surviving  at  her  death, 
intermarried  in  May,  A,  D.  1S55.  In  tlieir  present  bill  they 
claim  to  be  entitled,  in  the  right  of  the  wife,  to  an  undivided 
share  m  tlie  slaves  Sue  and  Toney,  and  in  their  hire,  and 
pray  an  account  from  the  deiendant  of  the  hire  and  a  parti- 
tion of  slaves  and  liire,  conceding  to  the  defendant  the  right 
to  a  share.  The  defendant,  under  the  form  of  a  demurrer, 
denies  wholly  tlie  title  thus  set  up  by  the  plaintiffs  to  Sue 
and  her  increase,  or  any  share  therein,  and  insists  that  the 
effect  of  the  deed  of  Elisha  Mellard  was  to  convey  an  abso- 
lute legal  estate  in  the  girl  Sue,  to  the  donee,  which  instantly 
became  vested  in  the  defendant,  by  virtue  of  his  marital 
rights.  The  issue  thus  made  requires  for  its  determination 
the  construction  of  the  deed  of  gift. 

A  gift  of  personalty,  in  terms  which,  if  the  subject  were 
realty,  would  create  an  estate  in  fee  conditional,  carries  to  the 
donee  the  absolute  ownership  of  tlie  personalty. 

Where  an  estate  of  freehold  in  realty  is  limited  to  one,  and 
in  the  same  instrument  there  is  contained  a  limitation  in  re- 
mainder, whetiier  immediately  or  mediately,  to  the  heirs  of 
his  body,  as  such,  the  first  taker  has  thereby  an  estate  in  fee 
conditional.  This  is  a  rule  of  property  lound:d  in  principles 
of  feudal  policy,  absolute  and  invariable  in  its  application  to 
all  cases  falling  within  its  terms,  not  only  wholly  independ- 
ant  of  the  intention  of  the  maker  of  the  instrument,  but  by 
its  very  terms  in  positive  contravention  of  that  intention.    In 


APPEALS  li\  EaUITY.  395 

Charleston,  April,  ISHO. 

deviftes  the  same  result  will  follow  evc^i  where  the  forbidden 
purpose  expresses  itself  by  the  use  of  other  than  the  strictly 
technical  words,  "  heirs  of  the  body."  The  single  int^niry 
in  all  cases  is  this  :  did  the  party  using  tiio  words  have  in  his 
contemplation  and  purpose,  and  tluMcfore  indicate  by  the 
words  used,  all  those  indefinite  successions  proceeding  from 
the  body  of  the  first  taker,  whensoever  existing,  to  whom  the 
terms  ap|»ly, ''  the  whole  line  of  inheiilable  succession,"  "all 
the  issue  of  every  generation  to  come?"  Or  did  he  thereby 
only  designate  a  particular  individual  or  class  of  individuals, 
as,  for  example,  all  in  a  certain  degree  of  relationship  to  the 
first  taker,  or  all  in  existence  at  a  particular  period  ?  "Meirs 
of  the  body,"  and  (in  a  devise)  issue  without  more,  import, 
ex  m  fef'rm'ni,  the  former  objects  of  contemplation,  that  is,  the 
indefinite  succession  of  persons  embraced  within  the  terms. 
I  say  "without  more,"  because  this  prima  facie  meaning  of 
the  terms  may  be  controlled  by  an  explanatory  context.  But 
the  context  must  be  explanatory,  the  purpose — to  use  the 
words  in  a  misapplied  sense,  (Hayes'  Lim.,  17,)  as  designat- 
ing particular  individuals  or  classes,  must  be  evidenced  "so 
clearly  that  no  one  can  misunderstand  it,"  or,  as  is  elsewhere 
said,  "  by  distinct  and  unequivocal  demonstration."  (Mayes' 
Lim.,  1.5.)  When  we  come  to  inquire  of  the  adjudged  cases, 
what  it  is  which  constitutes  this  distinct  and  unequivocal 
demonstration,  of  an  inleuti(»u  to  use  the  words  in  a  restricted 
sense,  such  as  shall  place  the  particular  case  out  of  the  terms 
of  the  rule  of  policy,  the  parallel  between  realty  and  person- 
alty soon  terminates,  and  we  find  the  lines  in  which  the  cases 
of  the  one  and  the  other  sort  of  proj^eriy  are  ranged,  begin 
presently  to  diverge.  That  which  will  dem(M)strate  the  inten- 
tion to  designate  by  the  words,  "  heirs  of  the  body,"  issue  not 
the  indefinite  succession,  but  jiarlicniar  individuals  or  classes, 
as  the  objects  of  donation  especially  present  to  the  donor's 
contemplation,  when  the  subject  of  donation  is  personally,  is 
often  wholly  inefTectual  for  the  same  purpose  when  it  is 
realty.     Thus,  a  limitation  over  of  the  subject  of  gift  tipon  the 


:J9«J  APPEALS  IN  EaUITY. 


Markley  vs.  SiiisfK-tary. 


failure  of  "  heirs  of  the  body,"  &c.,  of  the  first  taker,  in  terms 
which  clearly  evince  that  the  iiltitiiate  estate  so  limited  is  to 
take  effect,  if  at  all,  not  upon  an  indefinite  failnre  of  heirs  of 
the  body,  &.C.,  whensoever  occnrring,  but  at  the  death  of  the 
tenant  of  the  first  freehold,  is  held  to  demonstrate  certainly 
when  the  subject  is  personalty;  and  as  to  some  of  such  terms, 
when  it  is  realty,a  purpose  to  indicate  by  the  words  "  heirs  of 
the  body,"  "  issue,"  &c.,  the  particular  individuals  or  class  of 
persons,  who,  at  that  point  of  time,  are  in  existence,  and  to 
whom  (as  part  of  the  whole)  [McCorkle  vs.  Black,  7  Rich.  Eq,, 
407,)  the  words  may  be  applicable.  A  limitation  over  to 
^'survivors"  of  the  first  taker  has  this  effect,  whether  the 
sul)ject  of  gift  be  realty  or  personalty.  {Henry  vs.  Archer^ 
Bail.,  535  ;  McLure  vs.  Young,  3  Rich.  Eq.,  559.)  A  limitation 
over  upon  the  event  of  the  first  taker  "  leaving"  no  heirs  of 
liis  body,  issue,  &c.,  lias  the  same  effect  as  to  personalty. 
{Hull  vs.  Hull,  'J  Strob.  Eq,  175;  Chaplin  vs.  Turner,  2  Rich. 
Eq.,  130.)  So,  too,  words  of  distribution,  as  "  share  and  share 
alike,"  &c.,  or  words  of  limitation,  as  "  to  the  heirs  of  the  body 
of  A,  and  their  heirs  and  assigns  forever,"  superadded  in  the 
terms  of  direct  gift  to  the  words  "  heirs  of  the  body,"  "  issue," 
&c.,  as  to  personalty,  but  not  as  to  really,  are  equally  held  to 
demonstrate  such  intention.  And,  as  coming  within  the 
reason  of  the  last  rule  of  exception,  a  gift  to  "A  for  life,  and 
after  his  death  to  be  the  absolute  properly  of  the  heirs  of  his 
body  forever,"  have  been  adjudged  to  constitute  such  a  de- 
monstration. Cases,  such  as  these  now  alluded  to,  where 
there  is  considered  to  be  the  necessary  "  distinct  and  une- 
quivocal demonstration'"  of  a  purpose,  to  use  the  otherwise 
technical  words,  "heirs  of  the  body,"  "issue,"  &c.,  as  only 
designating  particular  individuals  or  classes,  are  not  excep- 
tions to,  or  relaxations  of  the  rule  of  policy  above  stated. 
(Hayes'  Lim.,  13;  2  Jarman,  240.)  They  do  not  come 
within  its  ternjs  ;  there  is  not  a  limitation  in  remainder  to 
the  heirs  of  the  body,  as  such,  and,  therefore,  they  are  outside 
of  the   application.     The  persons   designated   by    the  words, 


APPEALS  lx\  EQUITY.  :J'J7 

Chiirleston,  April,  IStiO. 

"heirs  of  ihe  Ixxly,"  "issue,"  &c.,  take  not  by  succession  to, 
or  descent  from  the  ancestor,  or  first  tak(!r,  but  directly  from 
tfie  donor,  and  are  therefore  said  to  take  as  "purchasers." 
There  is  one  other  general  remark  proper  to  be  made.  In 
the  terms  of  the  rule  of  policy,  as  stated  iti  the  early  part  of 
this  judgment,  it  will  be  observed,  the  limitation  to  the  heirs 
of  the  body  of  the  first  laker,  is  said  to  be  a  limitation,  "  in 
remaintji'r."'  (Hayes'  Lim.,  4-51;  2  Jarman,  Wills,  24-4.) 
This  word  "  remainder,"  necessarily  supposes  tliat  the  two 
''  limitations  are  of  the  same  quality,"  both  legal  or  both 
equitable  estates.  When,  therefore,  the  freehold,  limited  to 
the  ancestor,  is  "ecjuitable,  and  the  remainder  to  his  heirs 
special,  is  legal,  or  vice  ver,^a,'"  the  rule  is  silent. 

The  rule  of  policy  lo  which  allusion  has  been  made — tlie 
rule  in  Shelley's  case — has,  it  is  true,  no  direct  application  to 
estates  in  personalty,  but  when  it  is  said  that  terms  which 
create  an  estate  in  fee  conditional  in  realty  carry  the  absobite 
ownership  of  personalty,  it  becomes  necessary  to  inquire 
what  terms  do  create  an  estate  in  fee  conditional  in  realty  ; 
and  when  to  this  inquiry  it  is,  among  other  things,  answered, 
that  an  estate  fur  life  to  one,  followed  in  the  same  instrument 
Ity  an  estate  in  remainder  to  the  heirs  of  his  body,  &ic.,  \n'.- 
comes  an  estate  in  fee  conditional  in  the  first  taker,  it  seems 
to  result  that  instruments  creating  estates  in  personalty  can- 
not escape  wholly  from  the  operation  of  the  rule;  it  becomes, 
therefore,  important  in  cases  like  the  present,  to  incjnire  into 
I  he  extent  of  its  application,  and  how  far,  if  at  all,  that  appli- 
cation is  modified,  wlien  the  subject  of  gitt  is  personally,  by 
the  flexibility  of  the  principles  of  interpretation. 

I  proceed  lo  ap|)ly  the  general  principles  wbicii  have  been 
stated  to  the  determination  of  the  issue  made  between  the 
parlies  now  before  the  Court — What  estate  did  Celia  Ann 
Singleiary,  the  immediate  donee,  lake  in  the  negro  Sue, 
under  the  deed  of  Klisha  Mcllard  ?  What  estate  did  her 
issue  lake  ? 

It   luusl   be  observed    that   the   instrument   which  created 


898  APPEALS  IN  EaUITY. 

Slate  Bank  vs.  Cox  &:  Co. 

these  estates  is  a  deed,  and  the  term  used  to  describe  those  to 
whom  the  remainder  is  Hmited  is  "  issue."  The  word 
"  issue,"  iu  a  deed,  is  designalio  persojiae,  always  a  word  of 
purchase.  An  estate  in  fee  conditional,  (Hayes'  Lim.,  15, 
52,)  could  not  be  created  by  deed  by  the  use  of  this  word, 
even  when  clearly  designed  as  a  word  of  limitation  as  "  to  A 
and  his  issue."  Again,  in  il^eyerf  vs.  t/]nderson,[\  Strob.  Eq., 
344,)  already  adverted  to,  it  was  held  that  when  the  gift  was 
"to  A  for  life,  and  after  her  death  to  be  the  absolute  property 
of  the  issue  of  her  body  forever,"  the  issue  of  A  took  as  pur- 
chasers. The  reason  assigned  was,  that  the  words  showed 
an  intent  to  constitute  the  "issue"  a  new  stock  of  inheritance 
or  succession  ;  but  where  personal  property  is  the  subject  of 
gift,  the  words  "  to  be  the  property  of"  are  fully  as  effective 
as  those  other  words,  "  to  be  the  absolute  property  forever." 
(Williams  on  Personal  Property,  205.)  "  A  gift  of  personal- 
property  to  A  simply  without  more,  is  sufficient  to  vest  in 
him  the  absolute  interest.''  How  can  the  addition  of  the 
superfiuous  words  "absolute"  and  "forever,"  any  more 
strongly  import  a  purpose  to  make  the  "  issue"  a  new  stock 
of  inheritance  or  succession  ?  Perliaps,  too,  the  peculiarly 
definite  form  of  expression  "at  her  death"  ought  not  to  ])ass 
unobserved,  in  an  effort  to  ascertain  wliether  there  is  in  this 
instrument  the  required  demorjstration  of  an  intention  to  use 
the  word  "  issue,"  as  a  designatio  personurum. 

In  order  to  ascertain  the  quantity  of  estate  which  Celia 
Ann  Singletary  took  under  this  deed,  it  is  pertinent  to  inquire 
into  its  quality.  Is  it  legal  or  equitable?  The  gift  is  to  her 
"for  her  support  during  her  natural  life."  Do  these  words 
create  an  estate  for  the  separate  use  of  Celia  Ann  Singletary? 

No  i)articular  technical  form  of  words  is  necessary  to  create 
a  trust  for  the  separate  use  of  a  married  woman,  (l  Lead,, 
Cas.  Eq.,  539;)  but  as  such  separate  use  is  in  derogation  of 
the  coiumon  law  rights  of  the  husband,  it  can  be  recognized 
only  where  the  intent  to  create  it  is  "clear  and  unequivocal." 
The  cases  on  the  subject  cannot  be  easily,  if  at  all,  reconciled 


APPEALS  IN  EaUlTY.  899 

Charleston,  April,  l&GO. 

An  arrangement  into  three  classes,  of  the  modes  in  which  a 
separate  estate  in  a  wife  can  be  created,  has  been  made  by  an 
eminent  Chancellor  of  this  State,  {J\'''ix  vs.  Brad/e)/,  (i  Rich. 
E(].,  48,)  thus: — 1st.  Where  the  technical  words  "sole  and 
separate  nse,"  or  others  equivalent  are  used  ;  2d,  Where  the 
marital  rights  are  expressly  excluded  ;  and,  3d.  Where  the 
wife  is  empowered  to  perform  acts  concerning  the  estate 
given  to  her,  inconsistent  with  the  legal  disabilities  of  cover- 
ture. But  the  same  able  jurist,  in  a  subsequent  case,  [Ellis 
vs.  IVonds,  d  Rich.  Eq.,  19,)  says: — "The  only  safe  and 
rational  rule  that  can  be  laid  down,  as  applicable  to  cases  of 
this  kind,  is  one  the  enforcement  of  which  must  depend  on 
the  discreet  judgment  of  the  Conrt.  If  it  appear  to  the  satis- 
faction of  the  Court,  upon  a  fair  constrnclion  of  the  whole 
iustrnmcnt,  without  wresting  the  meaning  either  to  sustain 
the  marital  rights,  or  the  separate  rights  of  the  wife,  that 
there  is  a  manifest  intent  to  create  a  separate  estate,  such 
intent  should  be  elfectnaled,  thongh  no  express  words  of  that 
import  shonld  be  employed."  Each  case,  therefore,  as  it 
occius,  must  be  decided  npon  its  own  circumstances. 

In  IVylie  vs.  fVhife,  {]0  Rich.  Eq.,  294,)  the  testator  gave 
to  his  son  William,  "  during  his  natural  life,  the  use  atid 
benefit  of  the  following  negroes,  &c. ;  the  said  negroes  not  to 
be  removed  (mm  the  Slate,  or  be  disposed  of  by  him,  or  any 
other  person  whatsoever,  but  to  remain  exclusively  for  the 
annual  support  of  my  said  son  and  family."  It  was  held 
that  these  words  creat<'d  a  Irnst,  which  extended  to  the  wife 
and  children  of  the  legatee,  William,  and  luevcnted  the 
property  from  being  dealt  with  by  the  creditors  of  William, 
as  his  le^al  proj)erty,  and  the  creditors  were  perpetually 
enjoined  from  selling  the  property  under  their  executions  at 
Kiw.  It  is  true,  that  in  the  argument  of  the  Court,  some 
stress  is  laid  upon  the  prf^hibition  of  removal  or  dis|»osiiioti, 
and  upon  the  use  of  the  word  "annual."  But  the  course  of 
reasoning,  and  (^specially  the  anihorities  cited  in  support  of 
the  judgment,  show  that  the  effective  words  were,  "  for  the 


400  APPEALS  IN  EaUlTY. 

Marliley  vi.  Sins'Ietarv. 

support  of  my  said  son  and  family."     In  the  case  before  the 
Court,  the  gift   is   to  a  woman,  at   the   time   married,  and  is 
declared  to  he  "for  her  support."     These  words  do  not  seem 
merely  to  express  diffusely  what  is  implied   in   the  gift  itself, 
but  rather  a  devotion  of  the  gift  to  a  special  purpose,  and  by 
analogy  to  the  case  of  ff'7/lie  vs.  IFhife,  they  import  a  trust 
for  the  support  of  t\\e  /e?ne  covert,  which   can   be  effectuated 
only  by  regarding  it  as  a  separate  estate.     So  in   Darky  vs. 
Darleij,  (3  Atkins,  399,)  a  gift  to  a  liusband  "for  the  liveli- 
hood" of  the  wife,  was  held   to  constitute  an  estate  to   her 
sole  and   separate  use.     And   of  what   quality  is  a  separate 
estate  in  a  married   woman  ?     It  is  surely  equitable.     Such 
an  estate   is   unknown   to  the  common   law.     (Adams'  Eq., 
243;  2   Story's   Eq.   Jur.,  sec.  13,78,82;   1    Lead.   Cas.    Eq., 
541  ;    Ellis  vs.    JVoocl,  9   Rich.  Eq.,  19.)     It  is  the   creature 
exclusively  of  equity.     The  instant  it  ceases  to  be  an  equi- 
table and  becomes  a  legal  estate,  it  perishes.    "The  interven- 
tion of  a  trustee  is  not   necessary  to  the  validity  of  an  estate 
to  the  separate  use  of  a  married  woman.      If  real  or  personal 
property  be  given   to  her  separate  use.  her  interests  will  be 
protected  by  converting  the  husband  into  a  trustee."   "When 
the  inlention  appears  that  the  property  bequeathed  to  or  set- 
tled on  the  wife,  shall  be  to  her  sole  and  separate  use,  whether 
it  is  so  given  immediately  without  the  intervention  of  trus- 
tees, or  to  the  husband  for  her.  a  Court  of  Equity  will  effec- 
tuate the  intention,  by  converting  the  husband  into  a  trustee 
*for  the  wife.'"     If  the  words  here  used  in  the  circumstances 
of  lliis  case,  constitute  a  trust  for  the  separate  use  of  Celia 
Ann  Siugletary,  (and  such,  in  the  judgment  of  the  Court,  is 
their  effect,)  her  husband,  tlie  present  defendant,  will  be  re- 
garded as  having  taken  the  legal  estate  as  trustee  for  her  dur- 
ing her  natural   lif<;.     But,  "  at  lier  death,"  the  trust  ceases, 
and  then  the  slave  Sue  and  lier  increase  are  "  to  be  the  prop- 
erty of  the  issue  of  the  said   Celia  Ann   Siugletary."     'JMiese 
latter  words  carry   directly  to  the  issue  a  clear,  legal  estate. 
And  th(!  life  estate  in  the  mother  being  equitable,  and  tiie 


APPEALS  IN  EQUITY.  401 

Charleston,  April,  1S60. 

remainder  in  licr  issue  being  legal,  the  rule  in  Shelley's  case 
does  not  apply.  {.9i(.sfi>i  v.s.  Payne,  S  Ricli.  Eq.,  1  ;  but  see, 
as  to  real  estate,  Doug/as  vs.  Congrcvc,  I  Beav.,  59.)  The 
issue  of  Celia  Ami  Singletary,  take,  as  purchasers. 

Ahhough  not,  perhaps,  strictly  necessary  to  the  conclusion 
attained,  it  has  been  thought  the  fairer  course  toward  the 
parties  to  consider  and  determine  all  the  questions  made  in 
argument  at  the  bar. 

It  is  the  judgment  of  this  Conrt,  that  under  the  deed  of 
Elisha  Mellard,  the  immediate  donee,  Celia  Ann  Singletary, 
took  an  estate  for  the  term  of  her  own  life  only,  and  that  the 
issue  of  the  said  Celia  Ann  Singletary  ioak,  as  pu?-c/iaser.'i,  an 
estate  in  remainder  after  the  determination  of  this  her  life 
estate.  This  disposes  of  the  first  ground  of  demurrer,  which 
denies  any  right  whatever  in  the  plaintiffs, to  the  negroes  Sue 
and  Toney,  or  to  any  share  in  the  same.  It  is  not  necessary, 
at  this  stage  of  the  cause,  to  determine  what  persons  are  enti- 
tled to  ilie  estate  in  remainder,  under  the  designation  of 
"  issue,"  whether  all  the  issue  of  Celia  Ann  Singletary,  living 
at  her  death,  or  only  such  as  was  alive  at  the  date  of  the  deed. 
In  cither  of  these  cases,  Elisha  Mellard  Singletary  was  enti- 
tled at  the  death  of  his  mother  to  take.  In  the  one  case,  he 
would  take  one-half  of  the  property,  in  the  other,  the  whole 
of  it.  And  this  renders  necessary  the  determination  of  the 
question  made  by  the  defendant's  second  ground  of  demurrer. 
Is  it  absolutely  indispensable  that  a  personal  representative 
of  Elisha  Mellard  Singletary,  should  be  a  party  to  these  pro- 
ceedings? If  so,  the  plaintiffs  cannot  go  on  in  the  present 
condition  of  the  pleadings. 

It  has  been  suggested  on  the  part  of  the  plaintiffs,  tha<  by 
our  legislalion,  making  real  property  subject  to  the  claims  of 
the  owner's  creditors  equally  with  personalty,  and  directing  a 
comtiKMi  distribution  of  the  real  and  personal  property  of 
intestates,  the  distinction  between  the  two  classes  of  property, 
which,  at  the  common  law,  was  so  deeply  drawn,  has  been 
virtnallv  abolished.  And,  therefore,  that  as  in  realty  the  legal 
27 


402  APPEALS  IN  EaUITY. 

Markley  vs.  Singletary. 

title  is  cast  by  descent  upon  the  heirs, subject  only  to  a  charge 
for  debts,  so  the  distributees  of  the  intestate  should  be  con- 
sidered as  directly  succeeding  to  liis  legal  title  in  the  per- 
sonalty subject  to  a  like  charge.  This  view  of  the  matter  is 
not  destitute  of  plausibility,  but  this  Court  has  so  often  decided 
that  the  common  law  distinction  is  not  wholly  abolislied,  but 
for  many  purposes  remains  in  ail  its  force,  and  that  the  legal 
title  to  the  personalty  is  in  the  executor  or  administrator,  as 
the  case  may  be,  that  such  a  suggestion  cannot  be  entertained. 
It  is,  however,  certain,  that  all  the  persons  really  interested  in 
the  subject  matter  of  this  suit,  are  parties  to  it,  and  now  before 
the  Court.  Whatever  interest  Elislia  Mellard  Singletary  took 
under  the  deed  of  his  great-grand-father,  Elisha  Mellard, 
pa  sed  at  his  death  to  his  father,  the  present  defendant,  and 
his  sister,  the  plaintiff,  Celia  Ann,  in  equal  shares.  It  is  true 
that,  according  to  the  strict  letter  of  the  law,  this  interest  could 
reach  them  only  through  the  conduit  of  a  personal  represen- 
tative, but  a  personal  representative  intercepts  the  succession 
only  that  the  rights  of  creditors  may  be  protected  and  pro- 
vided for.  It  is  not  possible  that  Elisha  iVIellard  Singletary 
could  have  owed  any  debts  at  his  death.  He  lived  to  be  only 
eleven  years  old,  and  his  father,  the  present  defendant,  was 
bound  in  law  to  maintain  him.  [Edwards  vs.  Hui^gins,2 
McCord,  Ch.  16.)  Under  such  circumstances,  this  child 
could  not  contract  debts,  nor  be  responsible  in  property  for 
debts  contracted  for  his  benefit  by  others.  To  attribute 
debts  to  him  is  the  merest  fiction.  He  has  been  dead 
almost  twenty  years,  and  during  all  this  interval  the  defend- 
ant has  had  his  property  in  possession,  and  has  received  the 
income  thereof;  creditors  of  the  child,  if  such  there  could  be, 
might  at  any  time  during  this  long  period  have  treated  him 
as  executor  in  his  own  wrong,  and  certainly  would  have  done 
so.  Must  these  proceedings  be  delayed,  and  new  expense 
.incurred,  for  the  purpose  of  making  a  merely  formal  party? 
And  for  what  end?  in  order  that  such  party,  when  made,  may 
go  through  the  empty  show  of  receiving  the  share  of  Elisha 


APPEALS  IN  EaUITY.  403 

Charleston,  April,  1S60. 

IMellard  Singlctary,  and  in  the  same  instant  distribiiliim  that 
share  between  the  very  parties  now  before  the  Conrt,  between 
whom  it  conld  as  well  be  at  once  distributed  ?  It  will  not  be 
insisted  that  such  personal  representative  shall  give  the  usual 
public  notice  to  creditors,  and  that  these  proceedings  shall  be 
slayt.d  until  twelve  months  from  the  grant  of  administration 
shall  have  expired.  (A.  A.,  1789,  sect.  27,  5  St.,  111.)  Yet, 
if  the  jirotection  of  creditors  is  the  object  to  be  secured  by 
ail  administration,  that  would  seem  to  follow. 

Cases  can  certainly  be  found  in  our  own  books,  in  which 
it  is  said  that  where  an  infant,  {Read  vs.  Ready  8  Rich.,  145 ; 
Petigi'u  vs.  Fers;tison,  6  Rich.  Eq.,  378  ;  Walker  vs.  May., 
Bail.  Eq.,  GO;  Marsh  vs.  Neil,  Rich.  Eq.  Cas.,  115;  Spann 
vs.  Jennings,  1  Hill,  Ch.,  324  ;  Huson  vs.  Wallace,  1  Rich. 
Eq.,  ],)  who  has  been  interested  in  the  subject  matter  of  the 
suit,  has  died,  and  liis  interest  has,  therel'ore,  passed  by 
descent  to  others,  it  is  belter  that  a  personal  representative  of 
such  infant  shall  be  a  party;  but  no  case  has  been  cited  in 
which  such  a  course  has  been  made  imperative  under  all 
circumstances,  or  atiirmed  as  an  invariable  rule  of  practice, 
nor  has  any  case  been  adduced  in  which,  under  circum- 
stances like  the  present,  such  a  course  has  been  required.  I 
am  of  opinion  that  it  is  not  indispensable  that  a  personal 
representative  of  Elisha  Mellard  Singletary  should  be  a  party 
to  this  suit,  but  that  the  cause  maij  proceed  without  it. 

The  demurrer  is  overruled. 

The  defendant  appealed  on  the  grounds: 

1.  That  the  plaintitf  had  no  title  in  the  premises,  the  whole 
estate  being  vested  in  the  defendant  by  the  terms  of  the  lim- 
itation in  the  deed  of  gift. 

2.  That  there  was  not  a  separate  estate  in   Mrs.  Singletary. 

3.  That  the  personal  representative  of  the  estate  of  ilic 
deceased,  Elisha  Mellard  Singlctary,  was  not  a  party  to  this 
suit,  admitting  that  there  was  a  gift  to  the  issue. 

Simons,  for  appellant. 
Duryea,  contra. 


404  APPEALS  IN  EQUITY. 

Markley  vs.  Singletary. 

Per  Curiam.     This  Court  concurs  in  tiie  decree  of  Chan- 
cellor Inglis. 

The  motion  is,  therefore,  dismissed, 

O'Neall,  C.  J.,  AND  Johnstone  and  Wardlaw,  JJ.,  concur- 
ring. 

Appeal  dismissed. 


APPEALS  IN  EaUITY.  405 


Charleston,  April,  1860. 


William  T.   O'Neale  vs.  James   Dunlap  and  others. 

Parent  and  Child — Advancement — Guardian  and  Ward — 
Election — Real  Estate — Intestate's  Estates — Acts  of  Le- 
gislature. 

A  father  being  the  guardian  of  his  children,  and  having  a  sum  of  money  of 
theirs  in  his  hands,  invested  it  in  land,  and  the  amount  not  being  sullicieni, 
paid  a  balance  from  his  own  funds.  The  title  he  took  to  himself,  styling  him- 
self guardian  : — Held,  under  the  circumstances,  that  the  balance  paid  was  an 
advancement,  and  that  the  whole  of  the  land  belonged  to  the  wards. 

The  wards  having  elected  to  take  the  land,  not  the  money,  held,  that  it  must  be 
considered  as  real  estate,  and  so  treated  in  the  distribution  of  the  estates  of 
the  wards,  some  of  whom  were  dead. 

The  Act  of  1S51,  12  Stat.,  80,  amending  the  Act  of  1791,  must  be  read  as  if  it 
were  part  and  parcel  of  the  Act  of  1791.  and  incorporated  in  it. 

BEFORE  IXGLIS,  CII.,  AT  CHARLESTON,  FEBRUARY,  1S60. 

This  case  will  be  sufficiently  understood  from  the  circuit 
decree,  which  is  as  follows: 

Ixglis,  Ch.  Catherine  Dunn,  widow  of  George  Dunn,  by 
her  last  will,  which  was  admitted  to  probate  on  the  5th 
December,  1846,  and  of  which  James  Dunlap,  one  of  the 
defendants  in  this  cause,  became  the  qualified  executor, 
devised  a  lot  of  land  with  the  improvements  thereon,  con- 
sisting of  a  dwelling  house,  &c.,  situate  on  Lynch  street,  in 
the  City  of  Charleston,  to  her  three  nieces,  Ann,  Margaret, 
and  Elizabeth  Dunlap,  the  infant  daughters  of  the  said  de- 
fendant. For  some  reason  mit  disclosed  by  the  evidence, 
this  devise  did  not  take  effect  in  specie.  Under  proceedings, 
had  in  a  cause  wherein  Robert  Adams  and  others  were 
plaintiffs,  and  James  Dunlap,  in  his  capacity  of  executor, 
and  others  were  defendants,  (the  record  of  which  has   not 


406  APPEALS  IN  EQUITY. 

O'Neale  I's.  Diiiilnp. 

been  put  in  evidence  on  the  hearing  of  the  present  cause,) 
the  lot  of  hind  on  Lynch  street,  above  mentioned,  was  sold 
by  E.  R.  Laurens,  Esq.,  then  one  of  the  masters  in  chance- 
ry, on  the  20th  March,  1851,  and  purchased  by  the  defend- 
ant, James  Dunlap,  for  th(i  consideration  price  of  twelve 
hundred  dollars,  and  a  conveyance  tliereof  was  executed  to 
him,  under  the  style  of  "James  Dunlap,  guardian," 

In  March,  1851,  James  Dunlap  was,  by  the  order  of  this 
Court,  appointed  guardian  of  the  estates  of  liis  three  infant 
daughters,  above  named,  and  entered  into  bond  with  his 
codefendant,  A.  Dorrill,  as  his  surety,  to  one  of  the  masters, 
in  the  penalty  of  six  hundred  and  sixty-four  74-100  dollars, 
for  his  fidelity  as  guardian.  If,  in  the  order  of  the  Court, 
making  this  appointment,  there  were  any  terms  of  qualifica- 
tion or  restriction  introduced,  they  have  not  been  brought  to 
the  notice  of  the  Court.  It  will  be  assumed,  therefore,  that 
it  was  a  general  grant  of  guardianship,  and  all  receipts  of 
money  belonging  to  the  daughters,  must  be  referred  to  the 
authority  to  receive  thereby  conferred.  Crenshaw  vs.  Cren- 
shmv,4  Rich.  Eq.,  14.  About  the  time  when  this  appoint- 
ment was  consummated,  or  soon  thereafter,  James  Dunlap 
received  from  the  administrator  of  George  Dunn's  estate  the 
sum  of  three  hundred  and  thirty-two  37-100  dollars,  as  the 
aggregate  shares  of  his  three  wards,  "  in  the  personal  estate 
of  George  Dunn,"  whether  as  distributees  immediately  of  that 
estate,  or,  through  Catherine  Dunn,  the  widow  of  George,  as 
residuary  devisees  and  legatees,  taking  under  her  will  parts 
of  the  distributive  share  to  which  she  was  entitled  in  her 
husband's  estate,  does  not  very  clearly  appear.  About  the 
same  time  he  received  from  master  Laurens  the  sum  of 
seven  hundred  and  fifty-eight  16-100  dollars,  as  "the  shares 
of  his  three  daughters  in  the  sales  money  of  the  real  estate 
of  Mrs.  Catherine  Dunn,"  and  gave  a  receipt  therefor,  styled 
in  the  cause  aforesaid  of  Adams  et  al.  vs.  Dunlap  et  al. 

The  bill  in  the  present  cause,  which  is  brought  by  Wil- 
liam T.  O'Neale,  administrator  of  his  deceased   wife,  Eliza- 


APPEALS  IN  EaUITY.  407 

Charleston,  April,  ISr.O. 

bptli,  fdrnirrly  Elizabeth  Diiiilap,  one  of  the  aforesaid  three 
daughters  and  wards  of  the  defendant,  James  Dnnlap,  .9/a/e.?, 
that  tlie  eonsideration  price  of  twelve  hnndrcd  dollars,  express- 
ed in  the  deed  of  conveyance  of  the  hit  on  Lynch  street,  was 
the  ainonnt  to  which  the  three  danghters  were  entitled  as 
devisees  of  Catherine  Dunn.  It  states,  further,  the  appoint- 
ment of  Uiinlap,  as  gnardian  of  the  estates  of  his  three 
danghters,  and  his  receipt  in  that  capacity  of  the  shares  to 
whirji,  as  legatees  nnder  the  will  of  Catherine  Dnnn,  they 
became  entitled  in  the  personal  estate  of  George  Dnnn.  And 
\\  prai/s  that  he  rnay  answer  the  premises,  "as  Inlly  and  par- 
ticnlarly  as  if  the  same  were  here  rei)eated,  and  he  therennto 
sp(;cially  interrogated,"  and  that  he  may  account  for  the 
monies  received  by  him  as  guardian  In  direct  response  to 
these  statements,  he  says  in  his  answer,  that  the  aggregate 
Slim  received  by  him  for  his  danghters,  to  wit,  one  thousand 
and  ninety  dollars  and  fifty-three  cents,  including  the  amount 
($332  37)  received  from  the  administrator  of  George  Dunn, 
as  their  share  of  the  i)ersonal  estate  of  the  said  George,  &c., 
and  the  amount  (75S  16)  received  from  master  Lam  ens  as 
"the  shares  of  his  daughters  in  the  sale  money  of  the  real 
estate  of  Catherine  Dunn,"  was  used  liy  him  in  paying  the 
consideration  price  of  twelve  hundred  dollars,  and  that  the 
deficiency,  to  wit,  one  hundred  and  nine  47-100  dollars,  was 
advanced  out  of  his  own  funds.  His  answer  which,  in 
these  particulars,  is  thus  made  evidence  by  the  plaintiff,  is 
well  sustained  by  the  circumstances  disclosed  by  the  testi- 
mony, as  exhibited  in  the  master's  report. 

The  three  wards,  Ann,  Margaret,  and  Elizabeth,  all  mar- 
ried ;  Elizabeth,  who  was  the  wife  of  the  plaintiff,  had  died 
before  the  commencement  of  this  suit,  leaving  surviving  an 
infant  child  and  her  husband,  to  whom  administration  of 
her  personal  estate  has  been  granted.  Margaret,  who  inter- 
niarned  with  Thomas  Divine,  has  died  during  the  pendency 
of  th(>se  proceedings,  leavini:  her  husband,  but  no  issue,  sur- 
viving.    Ann  intermarried  with  John  A.  Wotlon,  and  is  still 


408  APPEALS  IN  EaUITY. 

O'Neale  vs.  Dunlap. 

living.  All  of  these  persons,  who  were  alive  at  the  institu- 
tion of  the  suit,  were  made  parties  thereto.  There  has  been 
no  adrninistralion  sned  out  on  the  personal  estate  of  Marga- 
ret Divine,  who  has  died  since,  and  no  proceeding,  therefore, 
to  revive  as  to  the  interest  which  she  had  in  the  subject  mat- 
ter of  the  suit. 

The  bill  claims  a  partition  of  the  lot  on  Lynch  street,  as 
the  joint  property  of  the  three  wards,  and  an  account  from 
the  defendant,  James  Dunlap,  of  the  rents  of  the  same,  (he 
having  occupied  the  place  since  its  purchase,)  and  also  an 
account  of  all  other  monies  received  by  him,  as  guardian, 
from  the  administrator  of  George  Dunn,  or  otherwise. 

The  evidence  satisfies  me,  that  the  sum  of  money,  to  wit  : 
one  thousand  and  ninety  53-100  dollars,  received  by  the 
defendant,  James  Dunlap,  for  his  daughters,  constituted  the 
whole  aggregate  of  their  several  estates.  He  received  and 
lield  it  m  the  capacity  of  guardian.  So  he  regarded,  and 
such,  in  fact,  was  the  character  of  his  possession.  Of  his 
own  motion,  and  without  any  authority  of  law,  he  invested 
this  money  in  the  lot  of  land  on  Lynch  street,  and  added 
thereto  of  his  own  funds  the  further  sum  of  one  hundred 
and  nine  47-100  dollars,  to  complete  the  purchase  money. 
He,  honestly  enough,  impressed  upon  the  face  of  his  title 
deed  the  fiduciary  character  in  which  he  held  the  property. 
If  he  had  done  otherwise,  and  taken  tlie  title  to  himself, 
without  the  addition  of  such  description,  it  would  have 
made  no  difference,  in  so  far  as  their  money  was  invested  in 
the  purchase.  There  is,  indeed,  authority  for  the  proposi- 
tion, that  where  such  investment  of  trust  funds  is  wrongful, 
and  more  especially  where  the  purciiase  has  been  made 
partly  with  the  trustee's  own  funds,  the  beneficiaries  can 
only  claim  a  lien  for  their  money  upon  the  property  ac- 
quired. Adams'  Eq.  (33)  and  Amer.  Note;  lb.,  143,  2 
Story's  Eq.  Jar.,  sec.  1210,  1211;  lb.,  sec.  1258,  62;  Ed- 
wards vs.  Crenshaw,  Harp.  224;  Myers  vs.  Myers,  2  McC, 
214;   Zimmerman  vs.   Harmon,  4   Rich.  Eq.,  165;   Hill  on 


APPEALS  IN  EaUITY.  409 

Chflrleston,  April,  1860. 

Trustees,  97  and  103,  5.  It  seems,  however,  mort;  conso- 
nant to  equity  and  the  rules  which  here  govern  the  fiduciary 
relations,  as  well  as  more  in  accordance  with  the  weight  of 
authority,  to  give  to  the  beneficiary  his  free  choice  between 
the  pro])erty  itself  and  tlie  restoration  of  his  money  invested 
in  it.  To  the  extent  of  their  money,  tlierefore,  used  in  the 
purchase  of  the  lot  in  I>ynch  street,  the  wards  of  Dunlap,  or 
their  representatives,  are  entitled  to  the  exercise  of  this 
choice  in  the  present  instance.  But,  further,  if  a  father  pur- 
chase property  witli  his  own  money,  and  take  the  title  in  the 
name  of  his  children,  '*tlie  transaction  will  be  regarded, 
pri77ta  facie,  diS  an  advancement  for  the  benefit  of  the  chil- 
dren." The  presumption  thus  arising  may  be  rebutted  by 
declarations  or  acts  of  the  father  wholly  inconsistent  with  an 
intention  to  give  the  benefit  of  the  purchase  to  the  children, 
wade  co/e??7poraneous/^  with  the  purc/iase  ,•  subseciuent  acts 
or  declarations  of  the  father,  or  any  other  matter  arising  ex 
posl  fuc/o,  cnuuQt  be  admitted  for  this  purpose.  Here,  the 
title  is  taken,  not  in  the  nawe  of  the  children,  but  of  the 
father,  as  tlieir  guardian,  which  is  stronger  evidence,  if  pos- 
sible, of  an  intention  to  advance  tlie  children,  as  it  amounts 
to  an  express  declaration  of  trust,  and  precludes  all  idea  that 
the  purchase  was,  in  his  own  intention,  at  the  time,  for  his 
own  benefit.  And  then,  too,  in  the  fact,  that  tiiis  particular 
property  had  been  devised  to  his  daughters  by  their  aunt, 
there  was  inducement,  in  order  that  her  benevolent  purpose 
should  not  be  defeated,  to  supplement  by  tlie  addition  of  so 
inconsiderable  a  sum  from  his  own  resources,  their  means, 
which,  alone,  were  insutficient  for  tlie  purchase.  It  is  the 
opinion  of  the  Court,  that  the  daughters  of  the  defendant, 
.lames  Dnnlaf),  or  those  who  now  represent  their  interests, 
are  entitled  to  the  whole  lot  on  Lynch  street,  as  the  joint 
equitable  property  of  the  three. 

The  lot  having  been  thus  ascertained  to  be  the  pro|H'rty  of 
the  wards,  it  follows  that  the  defendant,  .James  Dtmlap,  hav- 
ing had  it  in  charge,  must  account  to  them  for  the  annual 


410  APPEALS  IN  EaUlTY. 

O'Neale  vs.  Dimlap. 

rent.  Indeed,  he  has  himself  had  the  use  and  occupation  of 
the  premises,  and  they  are  still  in  his  possession.  Tlie  Court 
is  informed,  at  the  bar,  that  the  desire  of  the  daughters,  or 
those  who  represent  their  interests,  is,  that  this  account  for 
rent  with  eacli  daughter  shall  not  extend  further  back  than 
to  the  date  of  her  marriage;  for  that  the  one-third  of  the 
rent  to  which  each  would  be  entiiled,  may  he  deemed  to 
have  been  rightfully  used  in  her  support  and  education  up  to 
that  time.  Wlien  the  terms  of  the  devise  by  Catherine  Dunn 
are  adverted  to,  the  course  thus  indicated  seems  eminently 
proper,  and  the  decree  will  be  moulded  accordingly. 

The  deaths  of  Elizabeth  O'Neale  and  Margaret  Divine 
n)ake  it  necessary,  in  order  to  ascertain  the  course  of  devolu- 
tion of  their  shares,  to  determine  the  nature  of  the  property, 
in  the  regard  of  the  Court,  whether  it  is  to  be  treated  as  realty 
or  as  personalty.  The  question  is  not  free  from  embarrass- 
ment, not  so  much  in  reference  to  the  rules  of  law  which 
must  determine  it,  as  to  the  practical  application  of  those 
rules.  In  the  form  in  which  the  Court  finds  the  property 
when  called  to  deal  with  it,  it  is  realty,  and  the  funds  of  the 
wards  wherewith  it  was  purchased,  were,  in  very  large  part, 
the  proceeds  of  real  property  devised  directly  to  tliern.  A 
small  portion,  however,  of  these  funds,  is  stated  to  have  been 
their  shares  in  the  personal  piroperty  of  George  Dunn.  In 
strictness  of  law,  this  portion  must  be  treated  as  personalty, 
and  the  shares  of  the  deceased  cotenants  therein  must  devolve 
accordingly  on  their  personal  representatives.  Adams'  Eq., 
142.  The  same  course  must  be  pursued  as  to  all  that  part 
of  the  rent  which  shall  be  found  due  to  each,  which  had 
accrued  and  was  in  arrear  at  her  death.  1  Will,  on  Ex'rs, 
733. 

Some  doubt  has  been  suggested  as  to  the  distribution 
proper  to  be  made  of  tlie  share  of  Mrs.  Margaret  Divine,  in 
this  land  and  in  the  rent  thereof  The  several  Acts  of  Assem- 
bly, which  regulate  the  distribution  of  intestates'  estates,  are 
to  be   regarded  as  constituting  one  system,  and  to  be  con- 


APPEALS  IN  EaUITY.  411 


Charleston,  April,  ISOO. 

striied  toL'ether,  and  so  as,  if  possible,  to  harmonize  the 
whole.  The  modification  introdnced  by  the  late  Act,  12 
Stat.,  SO,  is  to  be  so  applied,  that  the  original  statute  of  1791 
shall  read  as  if  the  canon  applicable  to  the  slate  of  things 
conteni plated  by  the  new  Act,  stood  there  as  now  modified. 
The  share  of  Mrs.  Margaret  Divine  will,  therefore,  be  dis- 
tributed— one-half  to  her  husband,  Thomas  Divine,  and  the 
other  half,  in  ecjual  parts,  among  her  father,  the  defendant, 
James  Dtinlap,  her  sister,  Mrs.  Ann  Wotlen,  and  her  niece, 
the  infant,  Ella  II.  O'Neale.  So  far  as  the  property  is  per- 
sonally, her  share  must,  for  the  present,  go  to  her  pi^sotial 
representative.  The  defendant,  James  Dunlap,  in  his  an- 
swer, sets  up  a  demand  of  compensation  for  the  boarding  of 
Mrs.  Elizabeth  O'Neale  and  her  children,  during  a  large  part 
of  the  interval  between  her  mnrriage  and  her  death,  and  for 
care  and  nursing  bestowed  during  her  illness,  and  claims  to 
subject  her  share  in  the  property,  now  to  be  partitioned,  to 
the  satisfaction  of  this  demand.  Whatever  may  be  due  to 
him  on  such  account,  must  constitute  a  demand  against  the 
husband  pe-rsonally.  Much  testimony  was  introduced  at  the 
references  before  the  master,  toiicliing  the  merits  of  his 
claim.  I  have  examined  it  carefully,  and  although  it  might 
not  be  easy  to  make  out  from  it  the  exact  state  of  the  a«*count 
between  the  parties,  I  am  satisfied  by  this  testimony,  that  the 
plaiiitilf,  William  T.  O'Neale,  is  fairly  indebted  to  the  defend- 
ant, Jafiies  Dunlaji,  after  all  reasonable  deductions  are  made 
from  the  aniount  claimed,  in  a  balance  larger  than  any  share 
iV  which  he  is  directly  entitled  in  this  property.  As  no 
decree  could  l)e  given  him,  for  any  ascertained  excess  of  his 
claim  over  such  share,  it  is  enough  to  know  that  an  excess 
exists,  without  taking  its  exact  measurement.  In  so  far  as 
the  defendant,  James  Dunlap,  holds  the  property  in  contro- 
versy in  trust,  itmnediately,  for  the  plaintitf,  O'Neale,  and 
that  is  to  the  extent  of  his  share  in  the  realty,  he  is  entitled 
to  ask  that  this  Court,  before  wliich  the  plaintiff  has  brought 
him,  shall  not  compel  him  to  surrender  the  means  which  he 


4 J 3  APPEALS  IN  EaUITY. 


O'Neale  vs.  Diinlap. 


has  ill  his  own  hands,  for  satisfying,  in  whole  or  in  part,  his 
just  demand.  Morton  vs.  ^dams-,  1  Strob.  Eq.,72;  1  Story  Eq., 
sec.  fi40.  But  Mrs.  O'Neale's  share  in  the  personahy  goes  to 
the  plaintiff,  not  in  his  own  personal  right,  but  in  his  capa- 
city of  administrator,  and  wliat  shall  be  his  several  share  in 
this,  cannot  be  ascertained  until  he  shall  have  closed  his 
administration  and  settled  the  estate.  There  may  be  debts 
to  be  paid.  Certainly  there  have  been  expenses  attending 
the  administration,  and  the  assertion  of  the  rights  and  inter- 
ests which  were  of  the  intestate;  all  of  which  must  be  paid, 
before  tliere  can  be  any  distribution.  Beyond  the  share, 
which  the  plaintiff,  O'Neale,  as  an  heir  of  his  wife,  is  entitled 
to  take  in  the  realty  within  the  control  of  the  Court,  no  pro- 
vision can  be  made  in  this  cause  for  compelling  him  to  pay 
the  claim  of  the  defendant,  Dunlap,  against  him. 

It  is  ordered  and  decreed,  that  James  Tupper,  Esquire,  one 
of  the  masters  in  chancery  for  Charleston  district,  after  hav- 
ing given  twenty-one  days'  public  notice,  by  advertisement 
inserted  on  alternate  days,  in  one  of  the  daily  newspapers  of 
the  City  of  Charleston,  do  sell,  at  public  outcry,  at  the  usual 
place  of  master's  sale  of  real  estate,  all  that  lot  of  land,  situ- 
ate on  Lynch  street,  in  the  City  of  Charleston,  which  is  par- 
ticularly described  in  the  pleadings,  on  the  following  terms, 
to  wit :  one-third  c«.?/i,  and  the  residue  in  two  equal  instal- 
ments, at  one  and  two  years,  with  interest  on  the  whole  from 
day  of  sale,  payable  annually,  the  purchaser  to  secure  the 
payment  of  the  credit  portion  of  the  purchase  money,  accord- 
ing to  the  tortus,  by  bond,  with  two  or  more  good  and  suffi- 
cient sureties,  and  a  mortgage  of  the  premises  ;  that  from  the 
cash  part  of  the  purchase  money,  he  pay  first,  all  the  costs  of 
the  proceedings  in  this  cause,  except  the  costs  of  the  refer- 
ences held  for  the  investigation  of  the  claim  of  the  defendant, 
Dunlap,  against  the  plaintiff,  O'Neale,  as  to  which  each  of 
those  parlies  will  pay  his  own  costs  ;  that  he  separate  the 
residue  of  the  purchase  money  into  two  distinct  funds,  in 
the  proportion   to  each  other  of  $758  16   to  $332  37,  holding 


APPEALS  IN  EaUITY.  4i:J 

Charleston,  April,  ISGO. 

and  trcntiiii?  the  former  or  larger  stun  as  realty,  and  the  latter 
or  smaller  snm  as  personalty;  that  he  slate  an  account 
between  the  defendant,  James  Dnnlap,  and  each  of  his  three 
daughters,  for  one-third  of  a  reasonable  rent  of  the  lot  on 
Lyncii  street,  from  the  date  of  the  marriage  of  the  daughters 
respectively,  until  the  day  of  sale;  that  he  regard  and  treat 
so  much  of  the  said  rent,  included  in  each  of  those  accounts 
with  his  two  daughters,  who  are  deceased,  as  was  in  arrear 
at  the  deatli  of  the  said  daughters,  as  personalty,  and  all  the 
other  rent  as  realty;  that  he  distribute  the  wiiole  fund  which 
is  herein  directed  to  be  treated  as  realty,  in  the  manner  fol- 
lowing, to  wit:  seven-eighteenths  (7-ls)  thereof,  to  John  A. 
Wotten  and  wife,  Ann  ;  three-eighteenths  (3-lS)  thereof  to 
Thomas  Divine;  five-eighteenths  (5-lS)  to  the  infant,  Ella 
Hamilton  O'Xeale,  to  be  delivered  to  her  guardian,  and  three- 
eighteenths  (3-18)  to  James  Dunlap,  being  one-eighteenth 
(1-18)  in  his  own  right  as  heir  of  his  daughter,  Margaret, 
and  two-eighteenths  (2- IS)  being  the  share  of  the  plaintiff, 
W.  T.  O'Neale,  as  heir  of  his  deceased  wife;  that  he  distrib- 
ute the  fund,  which  is  herein  directed  to  be  taken  and  treated 
as  personalty,  in  the  manner  following,  to  wit ;  one-third  to 
John  A.  Wotten  and  wife,  Ann  ;  one-third  to  the  plaintiff, 
William  T.  O'Neale,  as  administrator  of  the  estate  of  his 
deceased  wife,  Elizabeth  O'Neale,  and  the  remaining  third 
to  the  personal  representative  of  Margaret  Divine;  and  that 
the  share  which  shall  fall  to  the  defendant,  James  Dunlap,  in 
this  distribution,  be  subjected,  in  the  master's  hands,  to  the 
satisfaction  of  any  claim  arising  against  liim  in  favor  of  the 
other  parlies,  or  any  of  them,  upon  the  accounting  directed 
in  this  decree. 

It  is  further  ordered,  that  the  said  master  do  inquire  and 
report,  whether  tlie  infant,  Ella  Hamilton  O'Neale,  has  any 
duly  appointed  guardian  of  her  estate;  if  not,  who  is  a  fit 
and  proper  person  to  be  plarcd  in  that  trust,  and  will  accept 
it;  what  is  the  probable  gross  value  of  her  whole  estate,  what 
is  her  present  age,  and  in  what  amount  the  person  appointed 


4i4  APPEALS  liN  EQUITY. 

O'Neale  vs.  Diinlap. 

to  the  guardianship  ought  to  give  bond  for  his  fidelity  in 
the  trust,  with  leave  to  said  master  to  report  any  special 
matter. 

The  defendant,  James  Dunlap,  appealed,  and  moved  that 
the  decree  may  be  reformed,  so  as  to  declare  that  the  house 
and  lot  in  Lynch  street  is  his  own  property,  standing  only  as 
a  security  for  the  amount  that  may  be  due  by  hirn,  as  guard- 
ian, or  as  executor  of  Catharine  Dunn,  to  his  three  daughters, 
or  to  their  legal  representatives.  That  this  amount  is  cor- 
rectly stated  by  the  master's  report,  which  ought  to  be  con- 
firmed. 

Or,  failing  in  this,  that  it  may  be  declare  J  he  has  a  lien  on 
the  premises  for  so  much  of  the  purchase  money  as  was  his 
own,  and  did  not  contribute  it  as  an  advancement  for  the 
benefit  of  the  children. 

And  the  personalty  consists  only  of  the  accumulated  inter- 
est or  rents. 

And  also,  to  declare  that  the  share  of  Mrs.  Divine,  whether 
it  be  regarded  as  realty  or  personally,  is  to  be  distributed, 
one-half  to  her  husband,  and  the  other  half  to  her  father, 
James  Dunlap,  tiie  appellant. 

1.  Because,  the  case,  as  developed  by  the  pleadings  and 
evidence,  is  not  that  of  a  guardian,  executor,  or  trustee,  specu- 
lating with,  or  trading  upon,  trust  funds,  but  the  contrary. 

The  defendant,  in  good  faith,  securely  and  lawfully  in- 
vested, by  way  of  mortgage,  the  money  of  his  wards,  and 
thereby  save  1  from  defeat  the  intention  of  his  testatrix, 
whose  bounty  it  was,  and  he  is  ready  and  willing  to  account 
for,  and  })ay  over  the  money  that  came  to  his  hands,  as  this 
Court  may  direct,  or  the  law  require. 

2.  Because  the  Act  of  Assembly,  of  1851,  does  not  apply 
to  the  distribution  of  Mrs.  Divine's  share  of  the  estate,  but 
the  same  is  distributable  under  the  provisions  of  the  Act 
of  1791. 

Campbell,  for  appellant. 
Buisf,  T.  Y.  Simons,  contra. 


APPEALS  IN  EaUITY.  415 

Chiirleslon,  April,  ISGO. 

The  opinion  of  the  Court  was  delivered  by 

O'Neall,  C.  J.  In  this  case  we  concur  in  most  of  the 
points  ruled  by  the  Ci)anccIlor's  decree.  Indeed,  he  has  so 
well  discussed  and  reasojied  out  the  matters  brought  in  con- 
troversy, in  that  as  well  as  in  other  cases  brought  before  him, 
as  to  save  us  the  labor  of  re-examination. 

In  this  case,  however,  we  are  constrained  to  differ  with  him 
as  to  the  character  of  the  property  to  which  the  wards  of  the 
defendant,  Dunlap,  are  entitled.  When  they  elect  to  take 
the  property  in  which  he  had  invested  their  funds  they  must 
take  it,  as  a  whole.  It  is  all  realty.  The  house  and  lot  in 
Lyncli  street,  by  his  investment  and  their  election,  became 
their  property. 

There  is  no  i)ropricty  to  say  that  a  part  of  the  investment 
arising  from  real  estate  sold  should  be  classed  as  realty,  and  a 
part  arising  from  personal  property  should  be  considered  per- 
sonalty. The  whole  investment  made  by  their  father  of  tlicir 
funds,  and  a  small  part  of  his  own,  as  their  guardian,  made 
the  house  and  lot  theirs,  and  of  course  it  is  all  realty.  So 
much  of  the  Chancellor's  decree  as  makes  a  distinction  can- 
not be  sustained. 

We  agree  with  him.  that  the  Act  of  1851,  12  Stat.,  SO,  SI, 
is  to  he  regarded  as  part  and  parcel  of  the  Act  of  1791.  My 
view  of  the  effect  of  an  amendment  is  presented  in  my  dis- 
senting opinion,  Hill  r.«.  Connclhj,  4  Rich.,  62fi.  It  is  un- 
necessary to  do  more  than  to  express  our  concurrence  in  tlie 
view  there  expressed,  and  which  the  Chancellor  has  enforced 
in  this  <-ase. 

It  is,  therefore,  ordered  and  decreed,  that  the  d<Mr(>e  be 
reformed  in  the  single  particular  in  which  we  differ  from  him, 
and  in  all  other  respects  be  atfirmed. 

JoH.NSToNE,  J.,  concurred  in  the  result. 

Wardlaw,  J.,  concurred. 

Decree  modified. 


416  APPEALS  IN  EQUITY. 


Martin  vs.  Pelit. 


Mrs.  M.  S.  Martin  vs.  E.  W.  Petit  and  L.  F.  Petit. 

Usury. 

Where  the  obligor  of  a  bond,  when  about  to  re-issiie  it  for  the  purpose  of  raising 
money,  represented  to  the  new  lender  that  the  bond  would  be  punctually  paid 
at  the  end  of  the  year  : — held,  that  such  representation  did  not  jireclude  the 
obligor  from  setting  up  the  defence  of  usury. 

Where  a  bond  was  originally  negotiated  at  a  usurious,  and  then  taken  up  and 
re-negotiated  at  a  less  usurious  interest,  to  another  lender,  ignorant  of  the  ori- 
ginal usury,  Jirlrl.  that  the  obligor  could  not  be  compelled  to  pay  to  the  new 
lender  more  than  the  amount  he  received  when  he  first  negotiated  the  bond. 

BEFORE  IXGLIS,  CH.,  AT  CHARLESTON,  FEBRUARY,  ISGO. 

Tliis  case  will  be  sufficiently  understood  from  the  circuit 
decree. 

Inglis,  Ch.  In  January,  18.56,  Edmund  W.  Pelit,  one  of 
the  defendants  in  this  cause,  being  under  the  necessity  of 
raising  a  sum  of  money  wherewith  to  meet  demands  then 
pressing  upon  him, applied  to  J.  E.  P.  Lazarus,  a  broker,  who 
had  been  in  tiie  habit  of  doing  business  for  him,  to  negotiate 
on  his  behalf,  a  loan  of  $5,000.  Proposals  for  this  end  were 
duly  advertised,  and  an  offer  in  reply  was  received  from  one 
W.  K.  Stewart,  to  advance  the  required  amount  for  one  year, 
at  a  discount  often  per  centum,  as  the  consideration  therefor, 
in  addition  to  the  lawful  interest  of  the  whole  sum.  There- 
upon, on  15th  day  of  that  month,  the  defendant,  E.  W.  Petit, 
made  his  bond  of  that  date,  conditioned  for  the  payment  of 
$5,000  on  the  15lh  day  of  January,  1857,  with  the  interest 
on  the  said  sum,  payable  semi-annually;  and  to  secure  the 
payinent  of  the  same,  according  to  the  condition,  by  deed  of 
the  same  date,  mortgaged  an  improved  lot  on  Hasell  street, 
in  the  City  of  Charleston,  particularly  described  in  the  plead- 
ings.    This   mortgage   was  duly   recorded.     The  bond    was 


APPEALS  IN  EaUITY.  417 

Charleston,  April,  1S60. 

made  payable  to  the  broker,  and  he  was  likewise  the  grantee 
in  the  mortgage.  On  the  same  day  on  which  these  securities 
bear  date,  they  were,  each,  by  endorsement  duly  made, 
assigned  by  the  nominal  payee  and  mortgagee  to  the  lender 
of  the  money,  W.  K.  Stewart,  and  the  defendant,  E.  W. 
Petit,  received  the  sum  of  $4,500,  of  which  he  paid  $50  to 
Lazarus  as  his  commissions  for  his  services  as  broker  in 
negotiating  the  loan.  The  interest  was  paid  regularly  and 
promptly  by  E.  W.  Petit,  according  to  the  condition  of  the 
bond  during  its  currency. 

As  the  year  of  credit  was  about  expiring,  E.  W.  Petit  was 
advertised  by  Lazarus  of  the  necessity  of  being  prepared  to  j)ay 
the  bond  at  its  maturity  ;  not  being  provided  with  the  means 
to  do  this,  he  employed  the  same  broker  to  negotiate  a  new 
loan  of  the  same  amount  upon  other  security,  with  a  view  to 
discharge  the  former.  Proposals  were  again  advertised,  but 
this  time  without  success.  "  Petit  desired  Lazarus  to  raise 
the  money"  for  him,  in  order  to  take  up  the  bond:  Lazarus 
knowing  that  the  plaintiff  sometimes  had  money  for  invest- 
ment, offered  the  bond  "  for  sale,"  as  it  is  said,  to  Mr.  Aiken, 
the  plaintitPs  agent.  A  negotiation  between  the  plaintilFand 
Petit  was  thereupon  carried  on,  through  Mr.  Aiken  on  the 
part  of  the  former,  and  the  broker,  Lazarus,  on  the  part  of 
the  latter. 

The  bond  was  already  past  due,  the  condition  broken,  but  a 
new  currency  was,  as  the  result  of  the  negotiation,  given  to  the 
old  securities  for  a  new  period  of  another  year,  in  consider 
ation  of  a  discount  of  seven  per  centum,  in  addition  to  the 
lawful  interest  payable  semi-annually  as  before.  There  was, 
at  this  point,  no  negotiation  between  the  plaintiff  and  the 
assignee  and  holder,  Stewart.  The  latter  did  not,  cither  per- 
sonally or  by  agent,  sell  the  bond  to  the  plaintitf;  he  only 
required  payment  from  the  obligor.  Lazarus,  in  this  second 
transaction,  as  in  the  first,  was  acting  as  the  agent  of  Petit, 
from  whom,  in  each  itistance,  he  received  his  compensation 
for  the  service  rendered.  This  negotiation  was  consum- 
28 


418  APPEALS  IN  EaUITY. 

Martin  vs.  Petit. 

mated  on  the  10th  February,  1857,  when  the  plaintiff  paid 
into  the  broiler's  hands,  as  the  net  proceeds  of  the  bond,  now 
issued  anew,  the  sum  of  $4,650,  and  Petit  paid  the  balance, 
$350,  together  with  the  interest  in  arrear  from  the  date  of 
the  maturity  of  the  bond,  to  wit,  twenty-six  days.  The  semi- 
annual interest  on  the  whole  sum  was  duly  paid  by  Petit,  on 
the  ISth  August,  1857,  at  the  expiration  of  six  months,  and 
again  on  the  19th  March,  1858,  at  the  expiration  of  twelve 
months  from  the  date  of  the  re-issue,  or  bargain  with  the 
plaintiff,  to  wit:  February  10th,  1857. 

In  May,  1858,  the  mortgaged  premises  were  sold  to  L.  F. 
Petit,  who  is  made  a  party  defendant  in  the  cause;  and  he, 
afterwards,  in  November  of  the  same  year,  sold  and  conveyed 
with  warranty  against  incumbrances,  to  a  third  person,  who 
is  not  made  a  party. 

E.  W.  Petit  having  failed  to  satisfy  the  bond  according  to 
its  condition  as  modified  in  the  regard  of  the  parties,  and 
having  ceased  even  to  pay  the  semi-annual  interest,  the 
plaintiff  has  filed  her  present  bill  to  enforce  the  payment  by 
decree  of  this  Court,  and,  if  necessary,  by  a  foreclosure  of  the 
mortgage  security.  The  defendant,  Edmund  W.  Petit,  after 
having  derived  from  these  several  transactions,  originated  by 
himself, and  into  which  the  other  parties  have  been  decoyed, 
at  his  instance, all  the  benefit  for  which,  in  his  circumstances, 
he  can  hope,  now  repudiates  them,  and  interposes  between 
himself  and  the  demands  of  those  who,  in  his  extremity, 
relieved  him  on  terms,  certainly  in  a  commercial  community 
not  obnoxious  to  censure,  the  defence  of  usury.  The  law 
permits  him  to  do  so.  The  other  defendant,  L.  F.  Petit, 
being  a  purchaser  for  value  of  the  mortgaged  premises,  and 
a  vendor  with  warranty,  bound  to  his  vendee  to  remove  the 
iticumbranne,  naturally  and  reasonably  desires  to  do  this,  at 
as  little  cost  to  himself  as  possible,  and  he  puts  up  the  same 
defence.  The  law  accords  to  him  this  privilege.  The  duty 
of  the  Court  is  to  administer  the  law. 

The  disguises  wliich  men's  purposes  put  on  may  not  be 


APPEALS  IN  EaUITY.  419 

Charleston,  April,  1S60. 

permitted  to  cheat  the  Court,  when  called  to  pass  judgment 
on  the  legal  character  of  their  acts.  No  doubt,  '■'' bona  fide 
notes  and  other  securities  are  subjects  of  legitimate  tratlic," 
and  perhaps  this  is  generally  known  among  those  who  trade 
in  money.  It  seems  quite  probable  that  the  defendant,  E. 
W.  Petit,  and  those  too  perhaps  who  dealt  with  him,  designed 
to  rescue  their  several  bargains,  now  passing  under  review, 
from  the  imputation  of  usury,  by  clothing  them  with  the 
semblance  of  sucii  a  tratlic.  But  it  is  without  controversy, 
that  the  transactions  of  15th  January,  1856,  in  which  the 
existence  of  the  securities  before  the  Court  had  its  origin  ; 
and  the  subsequent  transaction  of  the  10th  February,  1857, 
wherein  there  was  imparted  to  them  a  new  vitality  for  a  fur- 
ther term,  when  their  real  nature  is  discerned  through  their 
outward  form,  was,  each  of  them,  in  fact,  tainted  with  usury. 
The  bargain  made  between  the  defendant,  E.  W.  Petit,  and 
W.  K.  Stewart,  through  the  agency  of  Lazarus,  was  usu- 
rious. The  bargain  made  through  the  same  agency,  between 
the  same  defendant  and  the  plaintiff,  was  equally  so,  in  the 
quality  of  the  transaction,  though  not  in  its  extent. 

Where  bonds,  or  other  securities,  are  originally  usurious 
the  taint  of  usury,  and  the  reprobation  of  the  law  conse- 
quent thereupon,  follows  them  even  into  tlie  hands  of  an 
innocent  holder.  And  so  in  the  instance  before  the  Court,  if 
the  plaintiff,  on  the  10th  February,  1857,  had  in  fact  pur- 
chased this  bond  of  Petit,  and  W.  K.  Stewart,  the  assignee, 
she  must  have  taken  it  subject  to  the  infirmity  wherewith 
the  original  usury  had  affected  it,  however  ignorant  she 
might  have  been  of  the  real  character  of  its  origin.  The 
question  how  far,  as  between  her  and  E.  \V,  Petit,  this  infir- 
mity might  have  been,  in  effect,  cured  by  any  misrepresenta- 
tions or  assurances  on  his  part,  whereby  she  was  entrapped 
in  the  purchase,  which  would  have,  in  this  Court  at  least, 
precluded  him  from  setting  up  this  defence,  is  not  intended 
to  be  touched.  Here  the  interest  of  the  purchaser  claims 
protection. 


420  APPEALS  IN  EaUITY. 

Martin  w.  Petit. 

If,  however,  E.  W.  Petit  had,  on  the  10th  February,  1S57, 
borrowed  |5,000  from  the  plaintifl',  at  seven  per  centum  dis- 
count, and  for  tlie  securing  the  re-payment  thereof,  had  deliv- 
ered and  made  to  her  a  new  bond  of  that  date,  conditioned 
for  the  payment  of  that  sum  at  twelve  njonths,  with  interest 
semi-annually,  and  a  new  mortgage  of  the  lot  on  Hasell 
street;  and  with  the  money  thus  raised,  and  the  addition  from 
his  other  resources  of  such  further  sum  as  was  necessary,  had 
satisfied  and  extinguished  the  present  bond  and  mortgage, 
it  is  apprehended  that  such  new  bond  and  mortgage  would 
not  in  that  case  have  been,  in  any  sense,  tainted  with  the 
vice  of  the  original  securities. 

In  what  does  the  real  nature  of  the  transaction  of  the  10th 
February,  1857,  between  the  plaintiff,  and  the  defendant,  E. 
W.  Petit,  ditier  from  the  case  supposed  ?  The  fact,  that,  in 
order  to  avoid  the  expense  of  new  papers,  or  for  convenience 
or  other  cause,  the  parties,  instead  of  passing  new  securities, 
chose  to  set  up  again  the  old  ones,  and  give  them  a  new 
term  of  probation,  cannot,  as  it  seems  to  the  Court,  change 
the  substance  of  the  transaction,  or  transmute  its  legal  char- 
acter, though  it  may  embarrass  the  mind  in  its  efforts  to 
apprehend  it.  Contemplate  all  the  circumstances  of  the 
transaction  as  we  may,  it  comes  at  last  to  this — the  negotiat- 
ing a  new  loan  by  Petit  from  the  plaintiff,  the  taking  up  by 
him  of  the  old  securities  by  payment  thereof  in  full,  effected 
chiefly  by  means  of  this  loan,  and  the  putting  those  old 
securities  anew  into  currency  and  circulation,  by  their  deli- 
very to  the  plaintiff  with  the  formal  assignment  of  the  last 
holder.  If  the  plaintiff  had  in  fact  bought  this  bond  from 
the  assignee,  Stewart,  by  the  payment  to  him  of  its  full 
amount,  she  would,  as  has  been  seen,  have  been  entitled  to 
recover  from  Petit  only  the  amount  actually  received  by  the 
latter  from  Stewart,  reduced  by  all  the  payments  made  in  the 
meantime.  If  having  so  bought  it,  after  its  maturity,  she 
had  agreed  to  forbear,  and  had  forborne  the  debt  for  another 
year  for  the  additional  discount   of  seven   per  centum,  the 


APPEALS  IN  EaUITY.  421 

Charleston.  April,  ISfjO. 

proiiiium  for  such  forhearancp,  and  all  subsequent  paytneiits, 
must  have  gone  that  much  further  to  reduce  the  recovery. 
But  the  actual  transaction  does  not  seem  to  be  either  the 
one  or  the  other  of  these  supposed  cases.  The  plainiilf  lent 
or  advanced  her  money  directly  to  the  defendant,  Edmund 
W.  Petit.  Mr.  Ailcen,  the  agent  of  the  plaintiff,  in  his  note 
of  23d  August,  1S58,  addressed  to  the  defendant,  E.  W. 
Petit,  says:  "Mr.  J.  E.  P.  Lazarus,  y/'o/n  ivhom,  as  your 
anthorized  agent ,  I  purchased,  in  February,  1857,  a  bond  of 
yours  for  ^5,000."  Mr.  Petit  himself  says,  that  "on  the  10th 
February,  1S57,  he  paid  Lazarus  ^?50,  commissions  for  iiis 
services  in  getting  the  money  for  him" — and  that  ^^Lazarus 
was  his  agent  in  this  matter.''^  And  Mr.  Lazarus  says  it 
was  at  the  request  of  Mr.  Petit  that  he  (Lazarus)  tried  to 
negotiate  the  bond.  The  bond  produced  is  the  one  he  nego- 
tiated with  Mr.  Aiken  to  enable  Petit  to  pay  Stewart  the 
bond,  Mr.  Petit  gave;  "  he  was  authorized  by  Mr.  Petit  to 
get  a  loan,  or  the  extension  of  the  bond  for  one  year  inore.^^ 

The  Act  of  Assembly,  A.  A.,  1830,  6  Stat.,  409,  now  in 
force  on  the  subject  of  usury,  does  not  make  void  the  bond, 
note,  or  other  security,  given  for  a  usurious  consideration;  on 
the  contrary,  so  much  of  the  former  Act  as  so  provides,  is, 
by  the  present  Act,  expressly  repealed.  The  bond,  &c..  now 
stands  as  security  for  the  re-payment  of  the  amount  or  value 
actually  lent  and  advanced. 

The  present  is  not  the  case  of  a  borrower  seeking  the 
interposition  of  the  Court  for  his  relief  against  a  usurious 
contract,  and  therefore  the  familiar  principle  of  equity,  a(lirm- 
ed  in  Jones  vs.  Kilgore,  6  Rich.  Eq.,  64,  cited  in  the  master's 
report,  and  designed  for  cases  of  that  kind,  does  imt  apply. 

The  usurer,  or  lender,  is  here,  seeking  to  enforce  the  usu- 
riotis  contract,  and  the  statute  has  declared  in  positive  terms, 
that  "the  principal  sum,  amount,  or  value,  lent  or  advanced, 
without  any  interest,  shall  be  deemed  and  taken  by  the 
Courts  to  be  the  true  legal  debt  or  measure  of  damages,  to 


422  APPEALS  IN  EaUITY. 

Martin  vs.  Petit. 

all  intents  and  jvi^'po^^^  whatsoever,  to  be  recovered  without 
costs." 

It  will  have  appeared  from  what  has  been  already  said, 
that  in  the  opinion  of  this  Court,  the  plaintiff  is  the  lender, 
and  the  defendant,  E.  W.  Petit,  the  borrower,  from  her;  the 
principal  sum,  amount  or  value  lent,  or  advanced,  is  the  sum 
($4,650)  actually  received  by  Petit  from  the  plaintiff,  on  the 
10th  February,  1857;  and  that  for  the  re-payment  of  this 
sum  the  bond  and  mortgage  were,  by  the  agreement  of  the 
parties,  to  stand  as  security.  $350,  in  two  equal  parts, 
intended  as  interest,  have  been  received  by  the  plaintiff.  To 
this  state  of  facts  the  provisions  of  the  statute  are  to  be 
applied. 

It  is  adjudged  and  decreed,  that  the  plaintiff,  M.  S.  Martin, 
do  recover  against  the  defendant,  E.  W.  Petit,  the  sum  of 
$4,300,  without  interest,  and  without  costs,  and  have  leave 
in  the  usual  manner  to  make  the  mortgage  security  effec- 
tual for  enforcing  the  payment  of  the  same;  and  that  for  this 
purpose  such  further  orders  as  are  necessary  may  be  taken 
by  the  plaintiff'  at  the  foot  of  this  decree. 

The  complainant  appealed  on  the  ground: 

It  is  respectfully  submitted,  that  the  defendants  are  not 
entitled  to  set  up  the  defence  of  usury  upon  the  case  made 
by  the  evidence,  because  whatever  might  have  been  the 
nature  of  the  deahng  between  Stewart,  the  former  holder  of 
the  bond,  and  the  obhgor,  yet  the  latter  and  his  assigns  were 
estopped  by  his  conduct  and  assurances  from  setting  up  such 
a  defence  afterwards  against  the  innocent  assignee  who  had 
taken  the  bond  upon  the  faith  of  this. 

The  defendants  also  appeal  on  the  ground: 
Because  it  is  respectfully  submitted,  that  they  are  entitled 
(in  addition  to  the  discount  allowed  on  the  bond)  to  the  fur- 
ther discount  of  $500,  being  the  difference  betv/een  the 
amount  specified  in  the  condition  of  the  bond,  and  that 
actually  received  at  the  time  of  its  execution. 
Mitchell,  for  complainant. 


APPEALS  IN  EaUITY.  423 

Charleston,  April,  l&GO. 

It  is  submitted,  on  behalf  of  tlie  appellant,  that  whatever 
may  have  been  tlie  rights  of  the  original  parties  to  the  con- 
tract, the  present  defence  cannot  now  be  set  up  against  the 
complainant. 

It  may  be  admitted,  without  interfering  with  the  positions 
taken  on  behalf  of  the  complainant,  that  as  a  general  rule,  the 
assignee  of  a  bond  takes  it  in  the  condition  in  which  it  was, 
as  between  the  original  parties,  and  subject  to  the  same 
equities;  and  therefore,  that  any  objection  on  the  ground  of 
usury  would  follow  it,  even  in  the  hands  of  a  bona  fide  assig- 
nee for  value  ;  but  then  to  enable  the  obligor  and  his  assigns 
to  take  any  benefit  from  the  application  of  this  rule,  it  must 
appear  that  he  has  not  lost  it  by  any  subsequent  assurances 
or  dealings  which  would  make  it  fraudulent  or  unconscien- 
tious to  set  up  such  defence. 

We  present  it  as  a  well-settled  rule  of  equity  jurispru- 
dence, that  one  wlio  relies  upon  the  intentional  represetita- 
tions  or  conduct  of  another,  in  a  matter  of  business,  shall  be 
protected  against  any  subse(|uent  disavowal  of  the  party  mak- 
ing such  representation,  or  any  claim  inconsistent  with  it; 
and  this  principle  may  even  be  applied  to  the  protection  of 
one  who  has  relied  upon  the  mere  passive  conduct  of  an- 
other. 

The  earliest  application  of  this  was  probably  to  the  pro- 
tection of  the  purchasers  of  land  against  those  who,  having 
claims,  were  held  bound  to  expose  such  claims  at  the  time  of 
the  purchase. 

"  There  is  no  principle  better  established  in  this  Court,  or 
one  founded  on  more  solid  considerations  of  equity  and  ])ub- 
lic  utility,  than  that  which  declares  that  if  a  nian  knowingly, 
although  he  does  it  passively  by  looking  on,  suffers  another 
to  purchase  and  expend  money  on  land  under  an  erroneous 
opinion  of  title,  without  making  known  his  claim,  he  shall 
not  afterwards  be  permitted  to  exercise  his  legal  rights 
against  such  person.  It  would  be  an  act  of  fraud  and 
injustice,  and  his  conscience  is  bound  by  this  equitable  estop- 


424  APPEALS  IN  EaUITY. 


Martin  vs.  Petit. 


pel."  P.  Cii.  Kent,  TVendel  vs.  Van  Renselaer,  1  Johns.  Ch., 
354. 

Here,  it  will  be  seen,  the  prin<nple  is  held  to  extend  to  an 
instance  of  mere  passive  acquiescence  on  the  part  of  the 
claimant. 

To  the  same  effect  is  the  case  of  Higginbotham  vs.  Bur- 
nett, 5  Johns.  Ch.,  184.  And  the  principle  is  held  to  extend 
even  to  a  case  in  which  the  party  setting  np  a  claim  alleges 
ignorance  of  his  title.     Storrs  vs.  Barker,  6  Johns.  Ch.,  166. 

Bnt  the  principle  is  not  confined  to  purchasers  of  land, 
but  governs  wherever  the  circumstances  warrant  an  applica- 
tion. 

"  It  is  said  to  be  a  very  old  head  of  equity,  that  if  a  repre- 
sentation is  made  to  another  person  going  to  deal  in  a  matter 
of  interest,  upon  the  faith  of  tiiat  representation  the  former 
sliall  make  that  representation  good,  if  he  knows  it  to  be  false. 
To  justify,  however,  an  interposition  in  such  cases,  it  is  not 
only  necessary  to  establish  the  fact  of  misrepresentation,  but 
that  it  is  a  matter  of  substance,  or  important  to  the  interests 
of  the  other  party,  and  that  it  actually  does  mislead  him." 
Story  Eq.,  191. 

"  If  any  man,  upon  a  treaty  for  any  contract,  will  make  a 
false  representation,  by  n)eans  of  which  he  puts  the  person 
bargaining  under  a  mistake  upon  tlie  terms  of  bargain,  it  is 
a  fraud  :  it  misleads  tlie  parties  contracting  on  the  subject  of 
the  contract."  P.  Lord,  Ch.,  Neville  vs.  fVilkinson,  1  Bro. 
C,  546. 

It  is  difficult  to  suppose  a  case  in  which,  to  use  the  expres- 
sion of  Chancellor  Kent,  there  could  be  "  more  solid  consid- 
erations of  equity  and  public  utility"  for  the  application  of 
the  principle,  than  in  that  of  one  dealing  for  a  bond  on  the 
faith  of  the  representations  of  the  obligor,  made  to  persuade 
liini  to  the  purchase. 

In  the  case  of  Holbrook  vs.  Colburn,  the  claim  to  relief 
was  founded  on  the  application  of  this  principle,  the  plaintiff 
alleging  that  he  had  taken  the  bond  in  question  on  the  faith 


APPEALS  IN  EaUITY.  425 

Charleston,  April,  ISGO. 

of  a  written  representation,  made  at  the  time  that  the  hond 
was  execnted — that  the  obligor  had  no  discount,  &c.  The 
Court  lield  that  the  principle  did  not  apply  to  the  case  pre- 
sented, but  affirmed  tlio  principle  generally.  "  If,  however, 
the  obligor,  from  fraud,  negligence,  or  folly,  represent  himself 
to  be  liable  on  a  bond  to  one  about  to  deal  for  assignment, 
(and  perhaps  the  consequences  may  be  the  same  as  to  any 
substituted  purchaser  wlio  acts  on  the  faith  of  the  representa- 
tion,) or  even  if  the  obligor,  in  the  full  knowledge  of  his 
defence,  acquiesces  in  an  assignment  without  disclosure  of 
his  defence;  such  representation  or  concealment  will  amount 
to  an  estoppel  in  pais  upon  the  obligor  from  setting  up  his 
defence.  It  is  indispensable  to  such  estoppel  that  the  obligor 
should  induce,  promote,  or  encourage  the  assignment,  and 
that  the  assignment  should  be  accepted  in  consequence  of 
his  representation  or  concealment."  Wardlaw,  Ch.,  6  Rich. 
Eq.,  300. 

Now,  all  the  conditions  indicated  by  Mr,  Justice  Story,  as 
well  as  the  opinion  in  llolbrook  vs.  Colbnrn^  for  the  applica- 
tion of  the  principle,  will  be  found  in  the  present  case. 

Mr.  Aiken,  the  plaintiff's  agent,  was  induced  to  tr.ke  the 
bond  upon  the  faith  of  the  assurances  of  the  obligor,  through 
his  agent;  indeed,  he  would  not  take  the  bond  until  he  had 
this  assurance,  that  the  bond  would  be  paid  in  a  year;  here 
was  the  dealing  upon  the  faith  of  the  representation  which 
induced  that  dealing. 

It  may  be  said,  however,  that  there  was  nothing  in  these 
representations  specially  excluding  the  defence  now  set  up, 
but  neither  the  reason  of  the  rule,  nor  the  precedents,  re(]uire 
this  ;  indeed,  the  least  consideration  will  make  us  see  that 
this  is  always  out  of  the  (luestion  ;  to  suppose  the  inquiry 
pointed  to  this  or  that  particular  defence,  "supposes  a  know- 
ledge of  it  lo  exist;"  the  inquiry,  therefore,  from  the  condi- 
tion of  things,  must  always  be  general,  and  any  assurance 
which  induces  the  dealing,  requires  the  interpositicm  of  this 
protection.     Tlie  assurance  that  the  bond  would  be  paid  in 


426  APPEALS  IN  EaUITY. 

Martin  vs.  Petit. 

the  year,  carried  witli  it  the  exclusion  of  all  exception  or 
objection  on  the  part  of  the  obligor.  Nor  can  it  make  any 
difference  that  Lazarus,  the  broker,  besides  being  the  agent 
of  tlie  obligor,  was  also  to  some  extent  the  agent  of  Stewart, 
the  former  holder  of  the  bond  ;  for  though  the  latter  did  not 
know  the  mode  by  which  his  money  was  to  be  got,  yet  as  the 
bond  belonged  to  him  when  he  assigned  it  in  pursuance  of 
the  bargain,  he  ratified  it  to  that  extent. 

It  may,  perhaps,  be  contended,  that  there  is  something  in 
the  special  defence  of  usury  which  will  preclude  the  applica- 
tion of  this  general  principle.  It  seems  hard  to  suppose  that 
the  statute  of  usury  was  intended  to  give  effect  to  fraud.  Nor 
let  it  be  said  that  this  would  apply  to  the  application  of  the 
statute  itself;  in  such  case,  both  parties  know  that  they  are 
entering  into  a  contract  which  the  law  avoids,  so  that  neither 
party  is  misled,  and  therefore  there  can  be  no  fraud. 

But  the  case  under  consideration  is  essentially  different ;  it 
is  admitted  to  be  legal  and  unobjectionable  to  deal  for  a  bond 
in  existence,  on  the  best  terms  on  which  it  can  be  obtained. 
Everything  appeared  to  be  legal  and  regular  in  the  present 
case ;  although  it  would  now  appear  that  Stewart  did  not 
know  how  the  money  was  to  be  obtained,  yet  it  was  his  prop- 
erty, and,  therefore,  in  legal  contemplation,  could  only  be 
offered  on  his  behalf;  he  ratified  this  by  assigning  it  subse- 
quently. The  assurance  that  the  bond  would  be  paid  was 
the  strongest  form  in  which  the  legality  of  the  bond  could 
be  affirmed.  Our  own  decisions,  even  at  law,  quite  exclude 
the  defence  set  up,  and  that  such  will  extend  its  protection  to 
screen  one  in  the  perpetration  of  a  fraud  against  an  ignorant 
and  innocent  purchaser,  coming  in  subsequent  to  the  original 
contract. 

"  It  is  a  clear  and  long  established  rule  of  law,  that  no 
man  can  take  advantage  of  his  own  wrong.  He  who  violates 
a  law,  comes  with  a  bad  grace  t3  ask  to  be  restored  to  rights 
which  he  liad  surrendered  or  lost  by  his  illegal  act.  And  for 
this  reason,  he  who  pays  money  on  an  illegal  consideration, 


APPEALS  IN  EaUITY.  437 


Charlesiton,  April,  l&GO. 


cannot   maintain  an    action  to  recover  it  back."     Miller  vs. 
Kerr,  1  Bail.,  6. 

13nt  the  following  decision  seems  to  meet  precisely  tlie  pre- 
sent case : 

Thongli  a  note  made  to  raise  money,  and  sold  at  usurious 
discount,  is  usurious  and  void,  yet,  as  bona  fide  notes  and 
other  securities  are  subjects  of  legitimate  traffic,  if  an  indorser 
of  a  note  made  to  raise  money  at  an  usurious  interest,  repre- 
sent to  a  purchaser  that  it  is  a  business  note,  &c.,  and  the 
maker  is  present  and  acquiesces,  it  is  a  fraud  on  the  pur- 
chaser, and  they  arc  both  liable.      Odell  vs.  Cook,  2  Bail.,  59. 

And  this  decision,  too,  must  have  been  before  the  change 
in  the  law,  showing  more  indulgence  to  contracts  subject  to 
a  charge  of  usury.  It  would,  therefore,  be  allowing  the  de- 
fendant to  perpetrate  a  fraud,  if,  after  drawing  the  plaintiff  to 
purchase  this  bond,  he  were  allowed  to  set  up  a  defence  of 
this  sort. 

Nor  can  the  purchaser  be  in  a  better  situation  than  the 
obligor  ;  the  bond  was  assigned  to  the  complainant,  10th 
February,  1857,  and  the  premises  were  conveyed  to  the  pur- 
chaser, Sth  November,  185S,  with  full  notice  by  record  of 
the  amount  claimed  by  the  complainant. 

It  is,  therefore,  submitted,  that  the  complainant  is  entitled 
to  a  decree  for  the  full  amount  due  on  the  bond  and  mort- 
gage. 

Macbeth  £,-  Buist,  contra,  cited:  Payne  vs.  Tresuant,  2 
Bay,  23  ;  1  McC,  350 ;  JVillard  vs.  Reeder,  2  McC.  Ch., 
369;  I  McM.,  229;  Stork  vs.  Parker,  2  McC.  Ch.,  396; 
Clark  v.<i.  Hunter,  2  Sp,,  S3 ;  1  Rich.,  52  ;  2  Rich.,  74 ; 
Cau^rhman  vs.  Drafts,  1  Rich.  Eq.,  414;  G  Stat,  409;  I 
Strob.,  466. 

The  opinion  of  the  Court  was  delivered  by 
Johnstone,  J.      The    Chancelior    has    properly    observed, 
that  this  is   not  a  case   where    the  borrower  of  money  at 


428  APPEALS  IN  EQUITY. 

Martin  vs.  Petit. 

usurious  interest  comes  to  be  relieved  from  the  literal  per- 
formance of  his  contract:  but  a  case  where  the  holder  of  the 
contract  comes  into  Court  to  enforce  it  according  to  the  legal 
effect  of  its  terms.  In  such  cases,  the  contract  is  enforced 
only  according  to  its  legal  validity. 

The  Chancellor  has  concluded,  from  the  evidence,  that  the 
sum  advanced  by  Mrs.  Martin  was  by  way  of  loan  to  the 
obligor  of  the  bond,  and  not  by  way  of  purchasing  the  in- 
strumeni  from  Stewart;  and  that  the  bond  was  continued 
and  passed  over  to  her  at  an  usurious  discount,  as  her  secur- 
ity for  this  loan.  We  cannot  discover  that,  in  drawing  this 
conclusion  of  fact,  he  has  erred:  and,  therefore,  according  to 
the  settled  practice  of  this  Court,  his  decision  must  stand. 

Assuming  the  correctness  of  this  position,  the  Chancellor's 
legal  deduction  is  unquestionable,  that  the  debt  contracted 
by  the  borrower  is  not  to  be  measured  by  the  face  of  the 
bond,  but  by  the  amount  actually  advanced  on  it.  So  the 
statute  of  1S30,  6  Stat.,  409,  expressly  declares:  and  the 
statute  is  the  law  of  the  case. 

Here  it  may  be  perntitted  to  make  a  few  observations 
upon  the  conr»exion  between  this  statute  and  the  pre-exist- 
ing statute  of  1777,4  Stat.,  364,  which  it  partially  repeals 
and  modifies.  The  latter  makes  the  reservation  of  a  greater 
interest  than  seven  per  cent,  per  annum  upon  loans  or 
forbearance,  unlawful ;  and  declares  all  securities  created  for 
such  purpose  to  be  utterly  void;  and  goes  on  to  provide  a 
forfeiture  of  treble  the  value  of  the  loan  :  making  the  bor- 
rower competent  to  prove  the  offence,  in  any  suit,  brought  on 
the  bond,  &c.  The  statute  of  1830,  does  not  repeal  this 
prior  statute  generally,  or  throughout,  but  only  so  much  of 
it  as  imposes  the  penalty  of  treble  the  amount  loaned,  &c., 
and  so  much  as  declares  the  securities  taken  to  be  utterly 
void:  and  provides  that  the  lender  may  recover  the  princi- 
pal, or  sum  actually  loaned,  forfeiting  the  residue  of  the 
security  as  well  as  all  interest  and  costs.  That  is,  a  loan  at  a 
rate  exceeding  seven  per  cent,  per  annum,  is  left  unlawful, 


APPEALS  IN  EaUlTY.  429 

Charleston,  April,  ISOO. 

as  it  was  before,  and  the  usurious  interest,  and  even  lawful 
interest,  are  forfeited.  It  is  a  restriction  of  the  former  enact- 
ment avoiding  the  whole  instrument;  it  is  o\\\^  parti  all}/ 
avoided. 

As  I  liave  said,  the  Chancellor  has  correctly  restricted 
Mrs.  Martin  to  the  principal  advanced  by  her.  This  was 
the  legal  consequence  of  her  own  act  of  usury.  And  so  far 
we  approve  Iiis  decree. 

But  the  defendants  have  appealed,  because  he  did  not 
further  restrict  it  by  the  amount  actually  loaned  by  Stewart, 
the  original  holder  of  the  bond. 

The  bond  was  created  for  the  purpose  of  raising  money: 
and  such  securities,  being  tainted  with  usury,  (though  now, 
since  the  Act  of  1830,  only  partially  tainted,)  have  been  uni- 
formly held  to  carry  the  statutory  blight  with  them  into  the 
hands  of  all  persons  who  come  in  as  privies  to  the  contract- 
ing jiarlies,  however  innocent  they  may  be. 

As  the  bond,  in  Stewart's  hands,  was  affected  by  his 
usury,  it  was  impossible  for  his  assignee  to  take  the  bond 
from  him  for  more  than  it  was  legally  worth  to  him.  The 
transfer  did  not  baptise  it  of  that  usury.  It  was  good,  under 
the  statute,  only  for  the  money  he  actually  loaned,  without 
interest. 

It  is  not  perceived  how  any  effect  can  be  imparted  to  the 
bond  in  the  hands  of  the  assignee,  different  from  what  it  had 
in  Stewart's  hands.  It  was  the  old  contract,  vitiated  and 
reduced  as  it  was  by  the  first  act  of  usury,  not  changed  in 
terms  or  in  character,  which  j)assed  over  to  a  new  owner.  If 
Stewart  had  sold  it  to  Mrs.  Martin,  her  contract  of  purchase 
would  hav(;  been  good  to  make  her  legal  owner  of  the  secu- 
rity; but  it  would  still  have  been  a  security,  under  the  statute, 
only  for  the  amotint  Stewart  advanced  on  it. 

This  is  admitted  to  be  the  effect  of  a  long  list  of  decisions 
on  the  subject,  from  Payne  vs.  Trczevaut,  2  Bay,  23,  and 
Solomons  I's.  Jones,  1  Treadway,  144,  to  the  present  time. 

But  the  case  of  Odcll  r.^.  Cook,  (see  a  collection  of  cases,  3 


430  APPEALS  IN  EQUITY. 

Martin  vs.  Petit. 

Stat.,  783,)  is  relied  on,  on  the  other  side.  There  is  but  a 
very  imperfect  note  of  the  case  to  be  found.  It  represents 
that  "when  the  indorser  of  a  note,  made  to  raise  money  at 
an  usurious  interest,  represents  to  a  puchaser  that  it  is  a 
business  note,  made  for  a  bona  fide  consideration,  and  the 
maker  is  present,  and  acquiesces,  it  is  a  fraud  upon  the  pur- 
chaser, and  they  are  both  Hable."  It  would  be  very  unsafe 
to  rely  on  a  case  so  loose  as  this,  in  opposition  to  our  other- 
wise unbroken  current  of  decisions.* 

As  an  authority  for  the  position  that  Stewart  could  have 
changed  the  effect  of  the  bond  by  any  representations  he 
could  have  made,  the  case  is  totally  unsupported.  As  an 
authority  that  it  would  have  made  the  obligor  more  liable  on 
the  bond,  had  he  represented  it  as  untainted  with  usury,  it  is 
in  direct  conflict  with  Solomons  vs.  Jones.  And  it  must  be 
recollected  that  in  this  case,  when  Mrs.  Martin  comes  to 
claim  her  legal  rights,  she  must  not  stop  short  of  evidence 
sufficient  to  change  the  law  of  the  instrument.  But  the 
evidence  is,  not  that  the  obligor  represented  the  bond  to  be 
good  or  invalid,  usurious  or  otherwise,  but  simply  promised 
to  pay  it  punctually,  according  to  the  new  usurious  contract 
he  was  about  to  make,  not  with  a.  piircliase)',  but  a  lender. 

If  by  any  representations  a  borrower  of  money  can  make, 
he  can  take  the  taint  of  usury  from  his  vicious  contract,  he 
has  discovered  a  method  by  which  he  may  evade  the  statute; 
and  it  is  set  aside  and  repealed,  not  by  the  legislature,  but 
by  an  individual. 

The  effect  of  all  this,  however,  is  only  to  reduce  the  prin- 
cipal of  the  bond,  not  by  taking  off  it  both  the  discounts 
deducted  by  Mrs.  Martin  and  by  Stewart,  but  only  the  larger 


*  If  tiiis  case  is  understootl,  it  related  lo  an  original  emission  of  the  security  ; 
and  it  was  held  that  the  maker  and  endorser,  by  misrepresentation,  conspired  to 
sell  it  to  a  purchaser,  instead  of  borroirhig  money  on  it.  If  the  case  is  applicable, 
it  is  only  applicable  to  the  transfer  of  the  bond  to  Stewart.  But  the  Chancellor 
settles  that  matter  by  his  conclusion  of  fact,  that  thai  was  not  a  sale,  but  a 
loan. 


APPEALS  IN  EaUITY.  431 

Charleston,  April,  1S60. 

of  the  two,  SO  as  to  reduce  tlio  bond  to  lowest  point  of  prin- 
cipal. By  adding  to  the  larger  of  the  two  discounts  all  the 
other  payments  actually  made  on  the  bond,  the  sum  legally 
due  on  it  will  be  ascertained. 

It  is  ordered,  that  the  decree  be  modified  accordingly:  and 
let  the  cause  be  remanded  to  the  circuit  for  taking  the  neces- 
sary orders. 

O'Neall,  C.  J.,  concurred. 

Wardlaw,  J.  In  this  case  I  concur  with  the  Chancellor 
throughout,  and  of  course  do  not  assent  to  the  modification  of 
the  decree. 

The  Act  of  18.30,  6  Stat.,  409,  repeals  so  much  of  the  Act 
of  1777,  4  Stat.,  363,  as  renders  the  security  taken  upon  a 
usurious  contract  absolutely  null  and  void,  and  consequently 
a  usurious  bond  now  represents  prima  facie  the  true  sum 
actually  lent,  and  stands  as  fairly  before  the  Court  as  a  new 
bond  would  if  taken  on  a  fresh  forbearance  or  loan.  The 
general  presumption  as  to  the  amount  originally  lent  arising 
from  the  face  of  the  bond,  is  fortified  in  this  case  by  the  fact, 
concluded  by  the  Chancellor,  who  is  mainly  responsible  for 
the  determination  of  disputed  facts,  that  the  obligor  actually 
represented  to  the  plaintiff,  in  the  course  of  dealing  for  the 
bond,  that  the  bond  spoke  the  truth  as  to  the  sum  of  the 
obligation.  The  plaintiff  actually  lent  and  advanced  the 
sum  of  ^4,650,  when  she  acquired  the  security,  and  forbore 
tlie  payment  of  it;  and  for  that  sum,  deducting  subsequent 
payments,  she  is  entitled  to  a  decree  without  interest  and 
without  costs. 

Decree  modified. 


432  APPEALS  IN  EaUlTY. 


Gervais  vs.  Council. 


The  State  ex  relatione  P.  T.  Gervais,  Jr.,  and  others, 
vs.  The  City  Council  of  Charleston. 

Nuisance — Public  Landing — Injunction — Evidence. 

Bill  for  special  injunction  to  compel  the  City  Council  of  Charleston  to  re-estab- 
lish a  public  landing,  which  they  had  obstructed,  or  substitute  another,  equally 
as  good,  in  its  place,  dismissed  for  want  of  clear  and  satisfactory  evidence 
thai  the  right  existed. 

Courts  of  Equity  will  not,  it  seems,  grant  an  injunction  to  restrain  a  public  nui- 
sance, unless  the  right  be  established  by  clear  and  determinate  evidence. 

BEFORE  DARGAN,  CH.,  AT  CHARLESTON,  FEBRUARY,  1858. 

This  case  will  be  sufficiently  understood  from  the  circuit 
decree  of  his  Honor,  Chancellor  Dargan,  and  the  opinion 
delivered  in  the  Court  of  Appeals.  The  circuit  decree  is  as 
follows  : 

Dargan,  Ch.  The  City  Council  of  Charleston  converted 
White  Point  into  a  garden,  and,  in  1834,  extended  it  to  Meet- 
ing street,  and  afterwards  to  King  street,  surrounding  it,  on 
the  side  of  tlie  water,  with  a  sea-wall,  and  doing  away  with 
liberty  of  resorting  there  for  a  harbor  for  boats,  but  leaving  a 
flight  of  steps  on  the  water  side  to  admit  passengers.  In 
1846,  the  inhabitants  of  John's  island  and  James'  island 
addressed  a  memorial  to  council,  complaining  of  the  delay 
in  providing  for  them  a  landing  on  Ashley  river,  in  lieu  of 
that  which  they  had  enjoyed  at  the  foot  of  Meeting  street. 
Tlie  City  Council,  without  admitting  their  obligations,  pro- 
posed to  establish  a  public  landing  at  the  foot  of  King  street, 
if  the  islanders  would  bear  half  the  expense,  which  they 
refused,  and  the  subject  continued  to  be  pressed  upon  coun- 
cil, without  any  settlement,  until  1853.  In  February  of  that 
year,  the  islanders  had  retained  counsel,  and  through  them 
addressed   a  communication   to   the   city,  demanding,  as   a 


APPEALS  IN  EQUITY.  4«3 

Cliarlestoii,  April,  ISOO. 

right,  a  low-water  landing  on  Ashley  river,  and,  in  case  of  a 
reCusal,  requesting  a  reference  to  tiie  city  attorney  for  an 
appearance  to  a  bill  or  information.  The  conimnnication 
was  referred  to  a  committee,  who,  after  some  delay,  reported 
an  ordinance  *' To  establish  a  place  of  landing  at  the  foot  of 
('onncil  street,"  which  was  adopted  on  the  28th  of  October, 
in  the  same  year,  and  is  in  these  words  : 

"  Be  it  enacted  by  the  Mayor  and  ^'lldertiien  m  City  Coun- 
cil assembled,  That  the  south  end  of  Council  street  be,  and 
the  same  is  hereby  established  as  a  place  of  landing  for  per- 
sons and  boats,  for  the  use  of  the  inhabitants  of  the  city  and 
the  surrounding  country," 

The  end  of  Council  street  is  inaccessible,  except  at  high 
water.  A  mud  flat  extends  from  it  to  the  river.  Some  years 
ago  the  City  Council  purchased  for  a  street  a  strip  of  this 
mud  flat,  fifty  feet  wide,  from  the  end  of  Council  street  to 
the  ])oint  of  intersection  witii  a  line  drawn  from  the  end  of 
(iibbes  street.  On  some  private  maps,  Gibbes  street  and 
Council  street  are  represented  as  extending  to  the  point  of 
intersection,  but  not  on  the  map  in  the  city  hall.  Mr.  Carr^ 
one  of  the  members  of  council,  gave  evidence  that  he 
looked  upon  the  end  of  Council  street  to  be,  of  right,  at  the 
intersection  with  Gibbes  street,  but,  in  fact,  terminating  at 
the  high  land.  After  passing  this  ordinance,  the  City  Council 
hired,  for  a  time,  the  right  of  landing  at  Moreland's  wharf, 
for  the  islanders,  but  took  no  further  measures  to  carry  out  a 
landing  at  Council  street,  or  to  make  a  permanent  arrange- 
ment. And  the  parties  not  being  able  to  agree,  this  bill  was 
filed  in  October,  1855. 

The  relators  rest  their  case  upon  a  right  confirmed,  as  they 
say,  to  the  inhabitant's  of  John's  island  and  James'  island, 
by  the  Act  of  1733,  which  is  set  forth  at  large  in  the  bill. 
The  first  section  establishes  two  ferries,  one  over  Slono  river, 
the  other  over  Ashley  river,  from  Gabriel  Manigaull's  to 
White  Point,  in  Charleston,  or  as  near  thereto  as  may  be. 
The  fourth  reciting  that  roads  and  causeways  will  be  neces- 
29 


434  APPEALS  IN  EaUlTY. 

Gervais  vs.  Council. 

sary  to  the  ferries,  and  their  low-water  landings,  authorizes 
the  commissioners  of  roads  to  lay  out  good  and  sufficient 
landing  places  to  the  several  ferries  hereby  established.  The 
ferries  were  vested  for  seven  years  in  the  grantees  named 
in  the  Act.  There  is  no  evidence  of  the  subsequent  use  of 
the  ferries.  The  use  of  the  road  to  the  ferry  of  Stono  is 
attested  by  the  journal  of  the  commissioners  of  roads  of 
St.  John's,  Colleton.  There  is  evidence  of  the  use  of  the 
landing  at  Manigault's  ;  and  much  testimony  was  taken  as 
to  the  use  of  the  foot  of  Meeting  street,  which  is  by  White 
Point,  as  a  landing,  prior  to  1834. 

The  relators'  claim  is  for  a  public  landing,  in  place  of  the 
landing  which  the  City  Council  have  excluded  them  from,  at 
the  foot  of  Meeting  street.  If  they  were  entitled  to  a  public 
landing  at  the  foot  of  Meeting  street,  or  elsewhere,  the  clos- 
ing of  it  against  them  would  entitle  them  to  have  satisfac- 
tion, either  by  removing  the  obstruction,  or  by  furnishing 
another  landing  in  its  place.  This  proposition  is  too  plain 
:to  be  denied.  The  city  do  not  claim  an  exemption  from  the 
rule,  but  found  their  defence  on  other  grounds.  They  say, 
first,  that  there  never  was  a  low-water  landing  at  tlie  foot  of 
Meeting  street.  And,  secondly,  that  if  there  was,  this  Court 
'has  no  jurisdiction  of  the  question  of  satisfaction. 

Before  we  decide  whether  the  relators  had  such  a  right  as 
they  claim,  it  is  well  to  see  what  a  public  landing  is. 
Wharves,  quays  and  piers  belong  to  {\\QJus piiblicwn,  in  ports 
and  harbors,  and  the  repair  and  preservation  of  them  are  on 
the  same  footing  as  the  construction  and  preservation  of 
highways  on  land:  Lord  Hale,  de  Portibus  Maris,  S3.  A 
highway  or  a  wharf  may  be  free,  or  subject  to  toll.  In  the 
hands  of  a  subject,  toll  is  a  franchise,  and  the  right  of  pass- 
ing without  toll  a  privilege  or  liberty  :  Mayor  of  London  vs. 
Lynn,  1  Bos.  and  Pul.,  4S7.  The  privilege  may  be  proved 
by  grant  or  prescription.  In  this  case,  it  is  in  proof  that  the 
market  stuff  or  produce  of  the  relators  has,  time  out  of  mind, 
been  brought  in  boats  to  the  western  side  of  the  city  and 


APPEALS  IN  EaUITY.  485 

Charleston,  April,  1800. 

landrd  at  the  foot  of  Meeting  street,  witlitiut  paying  toll. 
And  if  the  right  was  claimed  on  the  ground  of  prescription, 
there  wonld  be  a  strong  case  for  it  npon  tiie  evidence.  Bnt 
the  Act  of  1733,  P.  L.,  137,  9  Cooper,  7.0,  removes  the  ques- 
tion from  the  province  of  evidence  to  that  of  authority.  The 
first  section  estahlishes,  over  the  Ashley  river,  a  ferry  "  from 
Gabriel  Manigault's  to  the  White  Point,  in  Charleston,  or  as 
near  thereto  as  may  be."  The  fourth  section  recites  that 
causeways  and  roads,  to  the  low-water  landings  at  the  ferry, 
will  be  necessary,  and  directs  the  commissioners  of  roads  to 
lay  ont  good  and  sufficient  roads  to  such  landing  places. 
The  evidence  of  Mr.  Rivers  and  Mr.  l^urdm  shows  that  ihe 
mail  route  from  Charleston  to  Savannah,  before  the  revolu- 
tion, took  this  direction.  The  Act  of  1785,  P.  L.,  391,  9 
Cooper,  299,  auihorizes  the  City  Council  to  continue  East 
Bay  street  to  the  extremity  of  White  Point,  and  it  is  natural 
to  look  for  a  public  landing  at  the  terminus  of  a  public  road, 
when  it  terminates  at  the  wafer.  It  is  admitted  that,  until 
1S34,  there  was  freedom  of  access  to  the  city  at  the  fool  of 
Meeting  street,  which  is  nnderstood  to  be  very  near  or  ad- 
joining what  was  called  White  Point,  and  it  is  proved  that 
boats  lay  there,  and  that  it  was  a  common  resort  for  the 
islanders.  It  is  objected  that  Meeting  street  was  not  a  low- 
water  landing,  but  it  seems  to  have  been  a  good  landing  at 
half-tide,  and  the  islanders,  at  low  water,  used  Turnbull's 
wharf,  alongside,  and  paid  no  toll ;  this  usage,  therefore,  is 
consistent  with  the  fact,  that  a  public  landing,  at  or  near 
White  Point,  was  established  by  law.  In  Judge  Evans'  Com- 
pilation, sec.  53,  it  is  said  that  "  though  the  statute  of  limita- 
tions will  not  run  against  a  public  right,  and  nonuser  merely 
will  not  destroy  the  character  of  a  public  highway,  yet,  if  it 
were  obstructed  and  enclosed  for  twenty  years,  a  legal  author- 
ity to  obstruct  it  might  be  presumed."  There  was  no  obstruc- 
tion of  this  pnblic  landing  before  1834,  and  there  is  no 
ground  to  presume  an  authority  to  obstruct  since  that  time, 
for  the  relators  and  City  Council  have  been  negotiating  ever 


486  APPEALS  IN  EQUITY. 

Gervais  vx.  Council. 

since  for  an  equivalent.  If  anything  is  to  be  presumed,  it  is 
that  the  City  Council  engaged  to  give  the  public  as  good  a 
landing  as  that  which  they  had  closed,  if  not  a  better. 
There  is  no  ground,  therefore,  to  assume  either  that  the 
relators  had  no  right  before  1834,  or  that  the  right  has  been 
since  relinquished. 

But  the  main  point  of  the  defence  is  the  want  of  jurisdic- 
tion. It  is  said  that  if  the  closing  of  Meeting  street  against 
the  relators  be  a  wrong,  an  indictment  will  lie.  This  may 
be  true,  but  it  is  not  enough  to  oust  this  Court  of  jurisdiction 
that  there  is  a  legal  remedy.  It  must  be  shown  that  the 
legal  remedy  is  sufficient.  The  relief,  which  the  relators 
seek,  is  clearly  one  which  the  Court  of  Sessions  cannot  give. 
The  Court  of  Sessions  is  competent  to  try  the  question  of 
nuisance,  and  punish  the  defendant  if  convicted.  But  the 
remedy  which  the  relators  seek  is  entirely  diiferent.  The 
City  Council  are  elected  periodically,  formerly  every  year. 
The  persons  who  are  in  office  one  year,  are  not  so  again 
unless  re-elected.  The  judgment  of  the  Court  might  author- 
ize the  relators  to  break  down  the  sea-wall,  but  when  that  is 
done  their  object  is  not  obtained.  They  wish  the  place  put 
into  condition  for  a  low-water  landing.  They  seek  not 
abatement,  but  construction.  And  the  Court  of  Sessions  has 
no  means  of  enforcing  its  judgment,  but  by  fine  and  impris- 
onment. The  fine  and  imprisonment,  however,  fall  on  the 
head  of  those  against  whom  the  bill  is  found,  who  may  or 
may  not  be  in  possession  of  the  means  or  the  power  of  the 
council,  when  the  case  is  tried.  Such  a  remedy  is  plainly 
inadequate.  In  all  civil  suits  the  judgment  is  against  the 
corporation.  It  would  ruin  the  credit  of  the  corporation,  if 
the  only  remedy  of  a  creditor  consisted  in  the  right  of 
imprisoning  the  ex-mayor  or  his  aldermen.  Where  abate- 
ment is  all  that  is  necessary,  the  proceeding  by  indictment 
may  do,  because  the  work  of  destruction  is  so  easy,  that  the 
prosecutor    may   very   possibly  carry    that    on    at    his    own 


APPEALS  IN  EaUITY.  437 

Charleston,  April,  IStjO. 

expense.  It  is  very  diircrciit  when  the  interests  of  justice 
call  for  reparation. 

But  it  is  very  questionable  whether  an  indictment  would 
lie  in  this  case  at  all.  The  rij^ht  of  the  relators  to  a  public 
landing,  is  not  inconsistent  with  the  right  of  the  city  to 
change  the  landing.  There  is  no  doubt  that  a  highway  may 
be  changed,  if  upon  a  writ  of  ad  quod  dauimirn  it  be  found 
that  the  new  way  is  as  beneficial  to  the  public  as  the  old.  1 
Russell,  452.  The  same  is  the  law  as  to  ports  and  passages. 
Hale  de  Portibus,  S7.  Considering  the  large  powers  vested  in 
the  city,  it  may  well  be  doubted  whether  it  is  necessary  for  the 
city  government  to  have  resort  to  any  preliminary  measures 
to  authorize  them  to  make  a  change  over  public  property, 
where  no  private  rights  are  invaded. 

The  very  name  ad  quod  damnum,  is  well  nigh  obsolete, 
and  nothing  is  more  common  than  for  such  changes  to  be 
made  by  tacit  conscMit,  If  an  iudictuKMit  had  been  j»referred 
against  the  ('ity  Council  in  1S34,  it  is  far  from  clear  that  it 
would  have  been  considered  a  proper  remedy.  At  all  events 
it  is  much  easier  to  presume  a  license  to  substitute  a  new 
landing  for  the  old,  than  to  presume  a  surrender  of  their 
rights  by  the  public  for  nothing. 

It  is  agreeable  to  reason  to  presume  in  favor  of  legality 
where  the  act  is  not  plainly  illegal.  It  is  not  favorable  to  a 
corporation  invested  with  high  civil  faculties,  to  reject  a 
benignant  construction  in  order  to  take  the  character  of  a 
wrong-doer.  If  this  case  had  been  institutcnl  recently  after 
the  occlusion  of  Meeting  street,  there  is  no  doubt  the  city 
would  have  taken  credit  for  the  intention  of  giving  the  rela- 
tors an  accommodation  fully  equal  to  what  they  were  depriv- 
ing them  of.  We  do  not  need  an  ad  quod  damn^im  to 
persuade  us  of  this.  The  city  has  admitted  the  obligation 
from  time  to  time  in  various  ways:  by  dedicating  the  foot  of 
King  street  to  the  use  of  the  islanders;  by  proposing  to  repair 
at  joint  expense;  by  the  ordinance  for  establishing  the  end  of 


43S  APPEALS  IjN  EaUITY. 

Gervais  vs.  Council. 

Council  Street  as  a  landing;  and  by  paying  an  annual  sum 
to  the  owner  of  Moreland's  wharf,  for  the  license  of  the  rela- 
tors to  pass. 

But  why  is  it  said  that  chancery  has  no  jurisdiction  in 
this  case.  If  the  question  of  nuisance  merely  is  to  be  tried, 
the  Court  of  Sessions  is  the  proper  tribunal;  and  if  the  objec- 
tion was  confined  to  this,  that  no  decree  sliould  be  made 
against  the  City  Council,  without  alfording  them  an  opportu- 
nity of  trying,  at  law,  their  right  to  stop  up  Meeting  street, 
there  would  be  some  authority  for  it.  But  thcTights  of  the 
parties  growing  out  of  questions  of  nuisance,  afford  many 
occasions  for  tiie  jurisdiction  of  tliis  Court.  If  all  depended 
on  the  question  of  nuisance  or  not,  it  would  be  fair  !o  give 
the  city  an  o|)portunity  of  trying  it  at  law.  Yet  in  cases  of 
purprestnre  and  nuisances  to  ports  or  harbors,  the  criminal 
view  of  the  question  is  so  little  resorted  to,  that  the  books 
hardly  furnish  a  precedent  for  an  indictment  for  suffering  a 
public  landing  to  be  ruinous,  and  the  most  usual  course  for 
redressing  such  evils  seems  always  to  have  been  by  decree 
or  order  emanating  from  chancery.  Hale,  87.  And  it  is  not 
only  by  injunction,  but  by  decree,  to  pull  down  erections 
already  made,  that  chancery  interferes.  Eden  on  Injunc- 
tions, 223. 

The  ditTicuIty  of  jurisdiction  being  removed,  the  justice  of 
the  case  depends  on  the  right  of  landing  at  White  Point.  If 
the  relators  were  entitled  to  a  low-water  landing  there,  and 
the  city  had  the  right  to  make  a  change  for  a  new  landing, 
they  are  bound  by  contract.  If  they  made  the  change  with- 
out authority,  then  they  are  bound  by  the  obligation  that 
arises  from  the  right  of  the  party,  who  is  wronged,  to  demand 
satisfaction.  I  shall,  tlierefore,  declare  the  relators  entitled  to 
a  low-water  landing  at  the  foot  of  Council  street.  The  decis- 
ion of  the  right  will,  in  all  probability,  lead  to  a  compliance 
by  the  city.  If  the  City  Council,  however,  on  being  called 
upon,  shall  refuse  to  proceed  to  make  the  landing,  or  evade 
the  diligent  performance  of  the  duty,  an  order  will  be  made 


APPEALS  IN  EaUITY.  489 

Charleston,  April,  ISrjO. 

directing  one  of  the  masters  to  incjuire  what  will  lie  a  rea- 
sonable sum  for  the  cost  of  the  work,  and  the  relators  will 
be  at  liberty  to  contract  for  such  work  and  raise  the  money 
by  process  against  the  defendant. 

Let  the  city  pay  the  relators'  costs,  and  comply  with  their 
rights  as  declared  in  this  decree. 

The  respondents  appealed  on  the  gronnds: 

\.  Because  the  islanders  never  had  by  right,  or  in  fact,  any 
low-water  landing  at  the  foot  of  Meeting  street,  or  anywhere 
else:  nor  was  there  ever  at  any  time  any  wharf  or  head  pro- 
jected to  low-water  mark  for  their  nse. 

2.  Because  the  Act  of  17S3  did  not  establish  a  permaufMit 
public  landing,  but  it  established  a  ferry  in  certain  individuals 
for  a  limited  time:  And  if  there  was  a  jilace  of  landing  inci- 
dent to  the  ferry,  it  ceased  with  the  ferry  privilege  from  the 
expiration  of  the  time  limited,  or  from  iinnuser,  or  from  non- 
comfiliance  with  the  conditions  of  the  grant. 

3.  Because  the  city  charter  of  178,3  which  vested  in  the 
City  Council  "any  vacant  low-water  lots  fronting  any  of  the 
streets,"  operated  as  a  repeal  of  any  ferry  or  landing  privi- 
lege that  may  have  been  previously  established  by  Act  of 
Assembly,  or  by  any  user  or  prescription. 

4.  liecause  the  erection  of  such  a  solid  and  permanent 
obstacle  to  the  enjoyment  of  the  easement  claimed,  as  the 
battery  or  sea-wall,  without  hindrance  or  protest  from  the 
islanders,  would  have  operated  as  a  release  or  extinguish- 
ment of  tiie  right  if  the  same  had  ever  existed. 

5.  Because  the  landing  at  the  fo.jt  of  Council  street  is  as 
good  a  high-water  landing  as  the  islanders  ever  had. 

6.  Becausf',  if  the  islanders  ever  had  a  right  of  landing  at 
the  foot  of  Meeting  street,  it  has  been  lost  by  nonuscr  or  dis- 
continuance. 

7.  Because  the  remedy  of  the  relators,  if  they  have  any,  is 
at  law:  and  this  Court  is  without  jurisdiction  in  the  i)reniises. 

Pnrter^  City  Attorney,  for  appellant. 
Pe/ii^ru,  contra. 


440  APPEALS  IN  EaUITY. 

Gervais  vs.  Coiinoil. 

The  opinion  of  the  Court  was  delivered  by 
Wardlaw,  J.  We  are  with  defendant  on  most  of  the 
grounds  of  appeal.  The  jurisdiction  of  the  Court  of  Equity 
in  the  matter  of  controversy,  called  in  question  by  the  7 
ground,  need  not  be  generally  contested:  for  it  is  sufficient 
to  determine  that  it  should  not  be  exercised  under  the  cir- 
cumstances of  this  case.  Judge  Story,  Eq.  Jur.,  924,  a,  says, 
that  Courts  of  Equity  will  grant  an  injunction  to  restrain  a 
public  nuisance  only  in  cases  where  the  fact  is  clearly  made 
oi!t,  upon  determinate  and  satisfactory  evidence:  for  if  the 
evidence  be  contlicting,  and  the  injury  to  the  public  doubt- 
ful, that  alone  will  constitute  a  ground  for  withholding  this 
extraordinary  interposition.  Fie  cites  the  case  of  Earl 
Ripon  vs.  Hobart,  Coop.  Sel,  Ca,,  333,  3  Mylne  &  Keene, 
169,  in  the  course  of  whicli  Lord  Brougham  says  :  '•  It  is  to 
be  always  borne  in  mind,  that  the  jurisdiction  of  this  Court 
over  nuisance  by  injunction  at  all,  is  of  recent  growth,  has 
not  till  very  lately  been  much  exercised,  and  has  at  various 
times  found  great  reluctance  on  the  part  of  the  learned 
Judges  to  use  it;  even  in  cases  where  the  thing  or  act  com- 
plained of  was  admitted  to  be  directly  and  immediately 
hurtful  to  the  complainant."  Lord  Eldon  seemed  to  think 
there  was  no  instance  of  injunction  to  restrain  nuisance, 
without  \x\di\,  JitPy  Gen.  vs.  Cleaver,  IS  Ves.,  211,  and  see 
3  Meriv.,  6S7,  6SS,  and  although  this  cannot  now  be  main- 
tained, still  his  doctrine  has  not  been  modified  beyond  the 
extent  indicated  by  Chancellor  Walworth,  6  Paige,  563,  "  If 
the  thing  sought  to  be  prohibited  is  in  itself  a  nuisance,  the 
Court  will  interfere  to  stay  irreparable  mischief,  wliere  the 
complainant's  right  is  not  doubtful,  without  waiting  the 
resnlt  of  a  trial."  It  may  be  further  remarked,  that  the 
remedy  sought  by  the  plaintitf  is  to  compel  the  City  Council 
to  pull  down  the  Battery,  a  permanent  obstruction  erected  at 
White  Point,  on  the  waste  at  the  foot  of  Meeting  street,  or 
alternatively  to  build  up  a  landing  at  low-water,  at  the  foot  of 
Council  street,  and  the  Chancellor  has  decreed  for  the  rela- 


APPEALS  IN  EaUITY.  441 

Charleston,  April,  1S60. 

tors,  that  the  Commil  shall  make  the  laiuiiiig  at  the  foot  of 
Council  street,  and  if  this  he  refused,  that  the  relators  may 
contract  for  the  work,  and  raise  the  money  by  jirocess 
against  the  defendant.  Now,  the  proper  office  of  an  injunc- 
tion, is  to  inhibit  or  restrain  some  act  not  rightful,  proposed 
to  be  done,  and  it  is  not  according  to  the  course  of  the  Court 
to  direct  the  defendant  to  proceed  actively — to  perform  some 
particular  act,  such  as  to  pull  down  blinds,  1  Ves.,  543,  to 
fill  up  a  ditch,  1  Ves.,  Jr.  140,  or  to  repair  banks,  10  V^es., 
192,  although  the  same  result  may  be  obtained  sometimes 
by  inhibiting  opposite  conduct.  Eden  on  Injunc,  238,  9. 
lint  we  recur  to  the  point  of  the  insutiiciency  of  the  plain- 
tiffs' proof. 

It  would  be  very  tedious  to  scrutinize,  in  detail,  the  parti- 
culars of  evidence;  and  we  shall  express  our  conclusions  on 
the  facts,  in  general  terms.  There  is  not  a  tittle  of  proof, 
that  the  inhabitants  of  James  island  or  John's  island,  in 
right  or  fact,  ever  had  a  landing  at  low-water  mark  at  the 
foot  of  Meeting  street  or  of  King  street.  No  wharf  or  head 
projected  to  low-water  was  ever  erected  at  the  foot  of  either 
street;  although,  possibly,  if  we  may  rely  on  vague  tradition, 
the  necessity  of  such  structure  was  superseded  anciently  by 
the  bluff  at  VVhite  Point,  until  tiiis  bluff  was  swept  off  by  the 
great  hurricane  in  the  sutumer  of  1752.  There  is  evidence 
that  the  inhabitants  of  the  islands  landed  at  high  tides,  or 
half  tides,  and  for  a  long  time,  at  the  foot  of  one  of  the 
streets  named — but  at  low-water  tliey  were  accustomed  to  go 
round  to  East  IJay.  The  stron:,'-est  testimony  as  to  the  use 
of  a  landing  on  South  Hay  is,  that  of  K.  Burden,  who  de- 
poses: •'  My  father  used  one  of  these  landings  on  South  Bay 
for  his  small  island  opposite,  and  for  his  plantation  on  Bur- 
den's island,  from  1768,  about  nine  years;  and  from  his 
plantation  alone  until  the  enemy  took  Charleston  in  17S0. 
He  died  in  May,  1785.  He  used  one  or  other  of  these  land- 
ings on  Soutli  Bay  till  the  time  of  his  death  :  my  niothcr 
used  one  of  them  during  life,  and  her  children  and  child- 


413  APPEALS  IN  EaUITY. 

Gervais  vs.  Council. 

Ten's  children  have  continued  the  use  tip  to  tlie  present  time. 
I  have  used  Council  street  as  a  high-water  landing  frequent- 
ly, but  frequently  had  to  go  to  South  Bay  at  low  tides.  The 
foot  of  Meeting  street  was  considered  a  public  landing,  but 
Gibbes',  McKenzies',  and  the  foot  of  King  street  were  also 
used."  Now,  this  demonstrates  that  no  use  had  fixed  on  a 
definite  spot,  nor  was  exacted  and  yielded  as  a  right:  and 
that  the  whole  was  probably  merely  permissive  and  vague, 
springing  from  the  sentiments  of  good  neighborhood,  and 
the  desire  of  inviting  custom  on  the  part  of  the  city  authori- 
ties. We  may  conjecture,  that  the  use,  such  as  it  was,  had. 
its  origin  in  the  Act  of  1733,  9  Stat.,  79,  establishing  two 
ferries,  one  called  John's  Island  ferry,  and  the  other  the 
James  Island  ferry — but  this  Act  was  limited  in  its  dura- 
tion to  the  term  of  seven  years,  gave  right  of  toll  to  in- 
dividuals and  imposed  duties  on  them,  and  fixed  the  land- 
ing on  the  Charleston  side  very  indefinitely — "to  the 
White  Point  in  Charleston,  or  as  near  thereto  as  may  be." 
Then  tlie  5th  section  of  the  Act  of  17S3,  the  charter  of  the 
city,  7  Stat.,  99,  vested  in  the  corporation,  "  any  vacant  low- 
water  lots  fronting  any  of  the  streets,"  and  of  course  merged 
and  extinguished  any  easement  in  them  not  granted  by  the 
State,  or  afterwards  acquired  by  grant  from  the  city,  or 
adverse  use  for  twenty  years.  Thomas  vs.  Daniel,  2  McC, 
354.  It  was  adjudged  in  New  York,  that  the  public  have 
not  the  right  to  use  and  occupy  the  soil  of  an  individual 
adjoining  navigable  waters  as  a  public  landing  and  place  of 
deposit  of  property  in  its  transit;  although,  such  user  has 
been  continued  for  more  than  twenty  years  with  the  knowl- 
edge of  the  owner,  20  Wend.,  Ill  ;  22  Wend.,  425.  What- 
ever may  have  been  the  right  of  the  islanders  as  to  the  foot 
of  Meeting  street  before  1834,  this  has  been  apparently 
abandoned  or  extinguished  by  the  nonuser  of  the  right  by 
them  for  more  than  twenty  years,  and  their  acquiescence 
until  the  filing  of  their  bill,  October  19,  1S55,  since  1S34  in 
the  erection  by  the  City  Council  then  of  the  battery,  a  per- 


APPEALS  IN  EaUITY.  443 

Charleston,  April,  ISGO. 

mancnt  and  solid  sea-wall  or  structure,  presentiug  an  abso- 
lute obstacle  to  tbeir  enjoyment  of  tbe  supposed  easement. 
The  same  term  of  twenty  years,  necessary  to  raise  tbe  pre- 
sumption of  tlie  grant  of  an  easement  from  enjoyment,  will 
raise  tbe  presumption  of  its  release  or  extinguishment,  in 
case  of  nonuser,  especially  if  this  be  entire  and  complete, 
and  caused  by  an  obstacle  defeating  its  exercise,  erected  by 
tbe  owner  of  tbe  soil:  3  Kent,  9  ed.,  585;  Taylor  vs.  Hamp- 
ton, 4  McC,  96;  Evans'  Road  L,,  sec.  53.  It  is  not  claimed 
bv  tbe  bill,  that  the  relators  have  acquired  any  right  to  a 
landing  at  the  foot  of  King  street  as  a  substitute  for  the  land- 
ing at  tbe  loot  of  Meeting  street:  and,  in  fact,  in  a  few  years 
after  1S34,  less  than  twenty,  tiie  battery  ;vas  extended  over 
the  waste  fronting  King  street.  Some  negotiations  ensued 
between  the  islanders,  through  tbeir  counsel,  and  tbe  City 
Council,  which  resulted,  so  far  as  we  know,  in  no  other 
recognition  of  the  right  of  the  relators,  than  that  contained 
in  the  Ordinance  of  October  28,  1853,  that  the  south  end  of 
Council  street  be  established  as  a  place  of  landing  for  per- 
sons and  boats  for  the  use  of  the  inliabitants  of  the  city  and 
of  the  surrounding  country.  This  Ordinance  must  be  inter- 
preted according  to  tbe  fair  import  of  its  terms;  for  there  is 
nothing  in  the  circumstances  under  which  it  was  passed,  to 
jioint  tbe  application  of  it  to  anything  not  witiiin  its  pojiular 
acceptation:  and  the  canons  of  construction  allow  us  no 
greater  latitude.  A  landing  at  the  end  of  Council  street 
means  a  landing  in  the  existing  state  of  tbe  water  and  high- 
way: and  the  words  cannot  be  legitimately  extended  to 
include,  by  implication,  any  obligation  on  the  part  of  the 
Council  to  prolong  tbe  street,  or  erect  a  wharf  accessible  in 
all  conditions  of  the  tide.  The  proof  is,  that  Council  street 
terminates  before  reaching  Gibbcs  street,  and  that  it  was 
never  contemplated  to  extend  it  beyond  the  point  of  inter- 
section with  Gibbes  street:  that  at  its  present  termination, 
there  is  a  good  high-water  landing,  and  that  tbe  extension  of 
the  street  to  low-water  mark  would   involve  heavy  expenses, 


444  APPEALS  IN  EaUITY. 

Gervais  vs.  Council. 

and  intrusion  upon  private  estate.  On  the  whole,  the  rela- 
tors have  not  satisfied  us,  by  determinate  and  clear  evidence, 
that  they  had  ever,  or  anywhere,  legal  right  to  a  low-water 
landing,  or  to  a  much  better  landing  than  the  foot  of  Council 
street  now  affords. 

We  may  regret  this  controversy,  but  it  is  our  function  to 
determine  lawful  rights  on  issues  properly  made,  and  not  to 
give  pragmatical  and  unauthoritative  advice. 

Ordered,  that  tiie  decree  be  reversed,  and  the  bill  be  dis- 
missed. 

Johnstone,  J.,  concurred. 

Decree  reversed. 


APPEALS  IN  EaUITY.  445 


Cliarlesiton,  April,  1S60. 


Ex  Parte  Abram  Wilson. 
L  u  nacy — Practice. 

Inquisitions  of  lunacy  are  usually  execiiteil  at  the  residence  of  the  jJiipposed 
lunatic,  or  in  the  vicinage  ;  hut  that  is  a  matter  within  the  discretion  of  the 
Judge  or  Chancellor  ordering  the  commission  ;  he  may  order  it  to  he  executed 
in  another  district. 

The  traverse  of  an  inquisition  of  lunacy  should,  as  a  general  rule,  be  tried  in  the 
district  where  the  commission  was  executed;  hut  that,  also,  seems  to  be  a 
matter  of  discretion  with  the  Judge  or  Chancellor  ordering  the  traverse. 

BEFORE  WAKDLAW,  CH.,  AT  CHARLESTON,  JUNE,  1S59. 

The  petitioner,  who  resided  in  Colleton  district,  was  fonnd 
to  be  a  huiatic,  by  an  inqnisition  held  in  Charleston,  on  the 
17lh  March,  1S59;  and  this  was  a  petition  for  leave  to  tra- 
verse the  inquisition.  His  Honor  granted  the  order,  and 
directed  t!ie  issne,  when  made  up,  to  be  tried  in  Charleston 
district. 

The  petitioner  appealed,  and  moved  this  Court  to  modify 
the  order,  and  direct  the  issne  to  be  tried  in  Colleton. 

McCrady,  Campbell,  for  ai)pellant. 

Ilayne,  Miles,  contra. 

Authorities  cited  :  Smith  vs.  Petigru,  2  Strob.  K(\.,  322  ; 
ex  parte  Baker,  19  Ves.,  310;  Cooper,  205;  ex  parte  Smith, 
1  Swan.,  6  ;  2  Ves.,  401  ;  in  re  Nusreni,  3  Mol.,  517  ;  12  Eng. 
Con.  Ch.  R.,  594;  ex  parte  Hall,  7  Ves.,  261,  254  ;  Shelf,  on 
Eunacy,  122;   14  Eng.  Ch.  R.,  38. 

The  opinion  of  the  Court  was  delivered  by 
O'Xkall,  C.  J.     From  the  earliest  cases  of  which  we  have 
any  account  in  this  State,  the  commission  in  the  nature  of  a 


446  APPEALS  IN  EaUITY. 

Ex  parte  Abratu  Wilson. 

writ  de  lunatico  inqxiirendo  lias  been  executed  at  the  alleged 
lunatic's  residence,  or  in  the  vicinage.  This  was  regarded 
as  a  convenient  practice,  both  for  the  sake  of  the  supposed 
lunatic,  his  family,  friends,  and  the  witnesses.  But  it  is  by- 
no  means  so  fixed  and  settled  a  rule  as  not  to  be  departed 
from.  Circumstances  may  make  it  necessary  that  it  should 
be  executed  elsewhere.  It  is  entirely  a  matter  of  discretion 
with  the  Chancellor  or  Judge  ordering  the  inquisition. 

Here,  I  have  no  doubt,  the  convenience  of  all  was  con- 
sulted, by  having  the  inquisition  executed  in  this  city. 
Ordinarily,  I  should  say,  the  traverse  ought  to  be  tried  where 
the  inquisition  was  found.  That  is  more  in  harmony  with 
the  course  of  proceeding,  and  preserves  the  record  in  the 
same  Court.  But  I  have  no  doubt  it  may  be  tried  in  the 
jurisdiction  where  the  alleged  lunatic  lives.  On  the  present 
occasion,  it  has  been  so  earnestly  pressed  upon  the  Court,  and 
the  Chancellor  who  allowed  the  traverse  having,  in  this 
Court,  of  which  he  is  a  member,  assented  to  the  change  of 
venue  to  Colleton  district:  it  is,  therefore,  ordered,  that  the 
order  allowing  the  traverse  be  so  modified,  that  the  traverse 
be  made,  docketed,  and  tried  in  Colleton  district,  at  the  next, 
or  any  subsequent  term  of  the  Court  of  Sessions  of  the  peace, 
at  which  it  may  be  practicable  to  try  the  same,  and  that  the 
Judge  presiding  at  the  trial  be  requested  to  certify  the  verdict 
to  the  Court  of  Equity  for  Charleston  district. 

Johnstone  and  Wardlaw,  JJ.,  concurred. 

Order  modified. 


CASES    IN    EQUITY 

ARGUED    AND    DETEUMINED 

IN  THE  COURT  OF  APPEALS, 

At  Columbia,  Mat  Term,  1860. 


JUDGES    PRESENT  : 

HON.  JOHN  B.  O'XEALL,  Chief  Justice. 
"        JOB  JOHNSTONE,  Associate  Jw/ffe. 
"        F.  H.  WARDLAW,  Associate  Judge. 


IVIiCHAEL  Willis  and  others  r.?.  John  Jolliffe  and 

OTHERS. 

Wills  and  Testaments — Slaves — Emancipation. 

In  1S54  E.  \V.  executed  his  will,  hy  wliich  he  directed  his  executors  to  take  his 
slaves  Amy  and  her  seven  children,  to  Ohio,  and  there  emancipate  them  ;  and 
the  rest  of  his  estate,  real  and  personal,  he  devised  and  bequeathed  to  his  e.Nec- 
ntors  in  trust,  for  Amy  and  her  children.  In  1555,  E.  W.  left  this  State  for 
Ohio,  taking  with  him  Amy  and  her  children,  and  intending  to  emancipate  them 
there  himself.  He  arrived  at  a  wharf  in  Cincinnati,  and,  in  a  few  minutes 
at'ler  landing,  died  betwixt  the  landing  and  the  hack  in  which  he  was  about  to 
proceed  with  said  negroes  to  his  lodgings: — Held,  That  by  the  act  of  E.  \V.  in 
taking  Amy  and  her  children  to  Ohio,  with  a  view  to  emancipate  them,  they 
became  ijino  facto  free,  and,  therefore,  that  the  trusts  of  the  will  in  their  favor 
were  valid. 

There  is  nothing  in  the  policy  of  the  laws  of  this  State  against  a  master's  taking 
his  slaves  to  a  free  State,  and  there  emancipating  them  himself 

BEFORE  WARDLAW,  ClI.,  AT  RAHNWELL,  FEBRUARY,  1&.'')S. 

The  circuit  decree  of  liis  Honor,  (he  presiding  Chancellor, 
is  as  follows  : 


448  APPEALS  IN  EaUITY. 

Willis  vs.  JollifTe. 

VVardlaw,  Ch.  Elijah  Willis,  a  native  of  South  Carolina, 
settled  early  in  life  near  Williston,  in  Barnwell  district, 
on  the  South  Carolina  Railroad,  and  was  domiciled  there 
thenceforth  until  his  death,  May  21,  1855.  He  there  accu- 
mulated considerable  property,  consisting  chiefly  of  lands 
and  slaves. 

August  IS,  1846,  he  signed  an  instrument  purporting  to  be 
his  will,  whereof  his  brothers-in-law,  Fanning  and  Phillips, 
were  named  as  executors,  and  whereby  he  disposed  of  his 
estate  among  his  brothers  and  sisters  and  their  children,  his 
nearest  of  kin.  He  never  married,  and  about  the  date  of  this 
instrument,  he  began  to  live  in  concubinage  with  one  of  his 
female  slaves,  named  Amy,  who  bore,  during  their  inter- 
course, several  children. 

He  executed,  in  duplicate,  his  last  will,  February  23,  1S54, 
in  the  office  of  Jolliffe  &  Gitchell,  attorneys-at-law,  in  the 
City  of  Cincinnati,  Ohio,  whereof  he  appointed  Edward  Har- 
wood,  Andrew  H.  Ernst  and  John  Jolliffe,  all  of  Hamilton 
county,  Ohio,  executors,  and  thereby  revoking  all  former 
wills,  disposed  of  his  estate  as  follows: 

1.  He  directs  his  just  debts  and  funeral  expenses  to  be  paid 
out  of  his  estate,  by  his  executors,  as  soon  after  his  death  as 
they  should  find  it  convenient. 

2.  He  bequeaths  to  his  executors  his  slaves.  Amy  and  her 
seven  children.  Elder,  Ellick,  Philip,  Clarissa  Ann,  Julia 
Ann,  Eliza  Ann  and  Savage,  with  any  other  child  or  child- 
ren to  which  the  said  Amy  may,  at  any  lime  hereafter,  give 
birth,  and  the  children  and  descendants,  if  any  there  may 
hereafter  be,  of  any  of  said  above-named  slaves  or  persons. 
The  said  executors  to  bring,  or  cause  said  persons  and  their 
increase  to  be  brought  to  the  State  of  Ohio,  and  to  emancipate 
and  set  them  free  in  said  State  of  Ohio. 

3.  He  devises  and  bequeaths  his  whole  estate,  of  whatever 
description,  and  wherever  found,  to  Iiis  executors,  or  to  such 
of  them  as  should  act,  and  the  survivors  or  survivor  of  them, 
or  to  his  administrators,  if  his  executors  should  fail  to  act,  to 


APPEALS  IN  EaUITY.  449 

Columbia,  May,  1S60. 

iiold  in  fee  sim|)le,  with  full  power  to  sell  and  convey  in  fee 
simple,  his  real  estate  at  public  or  private  sale,  and  at  such 
times  and  on  such  terms  and  securities  as  to  them  may  seem 
fit;  also,  with  full  power  to  sell  all  or  any  jiart  of  his 
personalty,  except  the  slaves  above  named,  and  any  child 
or  children  which  may  be  hereafter  born  to  any  of  said 
slaves. 

4.  He  bequeaths  to  his  executors,  or  administrators,  as  the 
case  may  be,  all  his  monies,  stocks,  mortgages,  bonds,  and 
other  securities  for  debt,  all  his  household  and  kitchen 
furniture,  and  all  his  implementvS,  tools  and  materials  for 
planting. 

5.  "  I  direct  tliat  from  the  net  proceeds  of  the  sales  of  said 
real  estate  and  personal  property,  and  of  the  nujiiies,  goods, 
chattels  and  elTects,  of  whatsoever  nature,  herein  devised  to 
my  executors:  my  said  executors,  or  the  survivors  or  survivor 
of  them,  or  any  administrator  under  this  will,  shall  bring,  or 
cause  said  Amy  and  her  children  to  be  brought  to  the  State 
of  Ohio,  as  hereinbefore  provided,  and  after  paying  the  neces- 
sary expenses  of  administration  and  settlement  of  my  estate, 
shall,  at  some  suitable  place,  within  some  one  of  the  free 
States  of  tliis  Union,  purchase  such  lands,  and  at  and  for 
such  price  or  prices  as  to  them  may  seem  best,  and  take 
deeds  for  said  lands  to,  and  in  the  name  of  such  eman- 
cipated persons  as  above  provided;  and  that,  in  taking  such 
deeds,  care  be  taken  that  each  of  said  persons  shall  have  a 
full  and  equal  share  of  said  real  estate,  quantity  and  quality 
considered  ;  said  executors  or  administrators  to  devote  the 
whole  of  the  residue  of  the  funds  of  my  said  estate  remaining 
in  their  hands,  after  the  payments  above  provided  (or,  to  the 
purchase  of  said  lands,  and  stocking  and  furnishing  the 
same,  and  placing  said  persons  in  possession  thereof;  and  in 
the  event  of  the  death  of  one  or  more  of  the  above  named 
persons,  leaving  any  child  or  children  previous  to  the  period 
of  the  purchase  and  distribution  of  such  lands,  such  child  or 

30 


450  APPEALS  IN  EaUITY. 

Willis  vs.  JoUifle. 

children  shall  succeed  to,  and  take  the  share  or  shares  of  its 
or  their  parent  or  parents." 

6.  He  authorizes  l)is  executors,  or  any  of  them,  to  employ- 
agents  and  attorneys,  for  reasonable  compensation,  to  proceed 
to  South  Carolina  or  elsewhere,  for  the  settlement  of  his 
estate,  with  power,  as  substitutes,  to  do  all  that  all  or  any  of 
the  executors  could  do;  and  further  provides,  that  if  one  or 
two  of  the  executors  shall  fail  to  act,  all  the  power  conferred 
on  the  executors,  including  the  power  to  sell,  shall  be  vested 
in  the  third,  as  if  he  had  been  named  sole  executor. 

In  May,  1855,  Elijah  Willis  left  his  home  in  Barnwell,  for 
Cincinnati,  taking  with  him  Amy  and  her  mother,  and 
Amy's  children,  the  eldest  three  having  been  begotten  by  a 
man  of  color. 

He  arrived  with  them  at  a  wharf  in  Cincinnati,  in  the 
steamboat  Strader,  and,  having  disembarked,  he  died  betwixt 
the  landing  and  a  hack,  in  which  he  was  about  to  proceed 
with  said  negroes  to  lodgings.  Soon  after  the  news  of  his 
death  reached  South  Carolina,  namely,  June  12,  1855,  the 
will  of  1846  was  admitted  to  probate  in  common  form. 

Previously,  May  23,  1855,  the  last  will  of  1854  was  proved 
in  Cincinnati,  and  Jolliffe  alone  qualified  as  executor — Har- 
wood  and  Ernst  liaving  renounced  the  office.  Briefly  after- 
wards, Jolliffe  propounded  the  will  of  1854,  for  probate,  in 
Barnwell,  South  Carolina,  and  by  consent  of  all  concerned, 
without  adduction  of  proofs,  a  decree  pro  forma  was  made 
by  the  ordinary,  refusing  probate.  An  apj)eal  was  taken  to 
the  Court  of  Common  Pleas,  for  Barnwell,  and  heard  before 
Judge  O'Neall,  at  Fall  Term,  1855,  when  the  verdict  of  the 
jury  was  against  the  will.  On  further  appeal  to  the  Law 
Court  of  Appeals,  that  Court  ordered  a  new  trial.  The  new 
trial  resulted  in  a  verdict  for  the  will,  and  the  next  of  kin 
acquiesced  in  this  verdict.  Jolliffe  then  qualified  as  executor 
in  South  Carolina. 

In  May,  1855,  when  testator  was  leaving  the  State  for 
Cincinnati,  and   on  his  journey  thither,  he  stated  that  his 


APPEALS  IN  EaUITY.  451 

Columbia,  May,  1860. 

purpose  was  to  take  the  slaves  to  a  free  State,  and  there 
emancipate  them,  and  also  stated  the  further  purpose  to 
return  to  Barnwell  after  a  short  absence.  There  is  no  evi- 
dence of  his  intention  to  change  his  native  domicil,  except 
as  this  may  be  inferred  from  the  removal  of  Amy,  and  his 
expressed  desire  to  sell  out  here,  if  he  could  make  sale  on 
terms  satisfactory  to  himself: — this  was  not  affected. 

At  an  earlier  date,  testator  removed  these  slaves  for  some 
mouths,  beyond  the  limits  of  this  State,  and  for  the  same 
end.  In  1853,  he  made  a  trip  with  them  to  Baltimore,  and 
brought  them  back  to  Barnwell.  It  can  hardly  be  disputed 
that  his  purpose  then  was  to  emancipate  then),  and  settle 
them  without  the  State;  but  from  some  motive,  probably 
suggested  by  the  interest  or  desire  of  the  slaves,  his  purpose 
was  changed  or  retarded. 

The  evidence  adduced  on  the  trial  of  this  case  is  volumi- 
nous, and  consists  principally  of  the  depositions  of  witnesses 
resident  abroad,  taken  by  commission;  and  much  of  it  re- 
lates exclusively  to  the  issue  of  probate,  for  which  it  was 
originally  procured.     See  10  Rich.  L.,  1S6. 

The  foregoing  statement  of  facts  is  a  summary  of  all  that 
is  deemed  material  in  the  case,  on  the  questions  now  pre- 
sented for  judgment. 

The  plaintitis,  the  next  of  kin  of  the  testator,  affirm  that 
Amy  and  her  children  were  slaves  at  the  death  of  testator, 
and,  consequently,  that  the  5  clause  of  the  will,  directing 
investments  for  the  benefit  of  Amy  and  her  children,  is  void 
under  the  provisions  of  our  Act  of  1841,  to  prevent  the 
emancipation  of  slaves,  and  for  other  purposes,  11  Stat.,  154. 
The  4  section  of  this  Act  enacts,  "  That  every  devise  or 
bequest  to  a  slave  or  slaves,  or  to  any  person  upon  a  trust,  or 
confidence,  secret  or  expressed,  fir  the  benefit  of  any  slave 
or  slaves,  shall  l)e  null  and  void  :"  and  the  other  sections,  in 
substance,  avoid — 1,  any  bequest,  gift  or  conveyance,  intend- 
ed to  take  effect  after  the  death  of  the  owner,  for  the  removal 
from  the  State  of  any  slave,  with  a  view  to  emancipation  ; 


452  APPEALS  K\  EQUITY. 

Willis  vs.  JollilTe. 

2,  any  gift  of  a  slave,  on  a  trust,  that  the  donee  shall  remove 
such  slave  from  the  State  with  the  purpose  of  emancipation; 
and  3,  any  bequest,  gift  or  conveyance  of  a  slave  on  the 
trust,  that  such  slave  shall  be  held  in  nominal  servitude 
only;  and  the  Act  declares  that  the  personal  representatives, 
donee  or  trustee,  as  the  case  may  be,  shall  be  liable  to 
account  for  the  value  of  such  slave,  in  the  first  section,  to 
the  creditors  and  distributees  of  the  person  making  the  will, 
and  in  the  second  and  third  sections,  to  the  distributees  or 
next  of  kin  of  the  donor  or  grantor. 

The  defendant  JollitTo,  the  executor,  insists  that  Amy  and 
her  children  were  in  the  condition  of  free  persons  at  the 
death  of  testator,  and  were  consequently  capable  of  taking 
by  devise  or  bequest.  If  these  legatees,  Amy  and  her  chil- 
dren, had  abided  in  South  Carolina  until  the  death  of  testa- 
tor, the  3  clause  of  the  will,  bequeathing  these  slaves  to  the 
executors  on  the  trust  that  they  should  be  taken  to  Ohio, 
and  there  set  free,  would  have  been  in  direct  contravention 
of  sec.  1  of  the  Act  of  1841;  and  if  they  had  been  given  to 
an  agent  on  the  trust  to  remove  them  from  the  State,  with  a 
view  to  their  emancipation  abroad,  sec.  2  would  have  avoid- 
ed the  gift;  but  the  owner  himself  took  them  to  Ohio,  after 
having  declared  his  purpose  to  manumit  them,  and  settle 
them  in  some  free  State,  and  it  is  argued  for  the  defendant 
that  this  exercise  by  the  owner  of  ihe  Jus  disponendi  escapes 
aU  the  provisions  of  the  Act,  and  that  the  intended  benefi- 
ciaries became  free  and  competent  the  moment  they  touched 
the  soil  of  Ohio. 

The  question  in  the  cause  is,  whether  Amy  and  her  chil- 
dren were  free  persons  or  slaves  by  the  law  of  South  Caro- 
lina, at  the  death  of  testator. 

It  was  faintly  suggested  and  argued,  that  the  domicil  of 
Elijah  Willis  and  his  legatees  was  in  Ohio  at  the  date  of  his 
death,  and  it  is  well  to  settle  this  point  before  proceeding  to 
the  discussion  of  the  principal  matter. 

He  was  born  and  bred  in  this  State;  here  he  acquired  his 


APPEALS  IN  EaUlTY.  45:? 

Coluinhia,  May,  1860. 

habits,  opinions,  and  ostatp,  and  here  were  his  creditors, 
debtors  and  kindred,  his  mansion,  plantation  and  growing 
crops,  and  all  iiis  property.  He  never  resided  in  Ohio,  and 
had  no  honse  there,  and  when  he  left  Barnwell  for  the  last 
time,  avowed  his  pnrpose  of  retnrning  within  a  few  weeks. 
The  native  domicil  is  changed  only  by  residence  abroad 
for  an  indefinite  term,  however  short,  and  it  readily  reverts. 
Two  things  mnst  concnr  to  constitute  domicil,  residence,  and 
the  intention  to  make  the  place  of  it  the  home  of  the  party, 
animus  manendi  etfaclum;  bnt  actual  residence  is  not  in- 
dispensable to  retain  a  domicil  once  acquired,  for  it  may  be 
retained  animo  so/o,  by  the  mere  intention  not  to  change  it 
for  another  by  one  transiently  inhabiting  elsewhere.  Sto. 
Conflict  of  Laws,  44,  47,  48;  Lowry  vs.  Brad/ei/,  Speer  Eq., 
1 ;  Petigru  vs.  Feri^nson,  6  Rich.  Eq.,  380;  Bcmfide  vs.  John- 
stone, 3  Vesey,  200.  It  seems  plain  that  tlie  domicil  of  tes- 
tator, at  his  death,  was  in  South  Carolina.  Domicil  can  be 
attributed  to  Amy  and  her  children  only  on  the  postulate 
that  they  were  free  persons.  If  they  became  free  simply  by 
breathing  the  atmosphere  of  Ohio,  doubtless  that  State  is 
their  native  domicil, — as  their  birth-place  as  persons,  contra- 
distinguished from  chattels.  The  personal  stains  of  a  party 
in  the  country  of  his  domicil,  adheres  to  him  abroad,  while 
his  domicil  is  unchanged. — Sto.  Conf.  Laws,  51-2,  fiO-4-5-6. 
Considered  as  chattels.  Amy  and  her  brood  liave  no  sihis, 
and  follow  the  person  of  their  owner,  and  are  governed  by 
the  law  of  his  dotnicil,  for  the  maxim  is,  in  domicilii  loco, 
mobiliu  intelliganiur  e.xistere. — Sto.  C.  L.,  377;  In  re  Erwin, 
1  Cromp.  and  Jerv.,  156.  The  law  of  the  owner's  domicil 
determines  in  all  cases  the  validity  of  every  transfer,  aliena- 
tion or  disposition  of  personal  property  made  by  him,  wheth- 
er inter  vivos,  or  to  take  effect  post  mortem.  Sto.  C.  L. ,  383. 
Sill  vs.  IVorswick,  1  H.  Black,  690.  Birtwhistle  vs.  Vardill, 
5  Barn.  &  Cr.,  438.  LePrince  vs.  Guillemot^  1  Rich.  Eq., 
212.  If  Amy  and  her  children  were  slaves  at  the  death  of 
testator,  (when  the  will  is  contemplated  as  uttering  its  direc- 


454  APPEALS  IN  EaUlTY. 

Willis  vs.  Jollifle. 

tious,)  tliey  must  be  treated,  in  the  view  of  law,  as  abiding 
in  South  CaroHna,  wherever  in  space  their  bodies  might  be; 
and  the  direction  to  remove  tliem,  althongh  they  were  actu- 
ally in  Ohio,  mnst  be  interpreted  as  a  direction  to  remove 
them  from  this  State.  As  the  will,  in  this  case,  directs  the 
lands  10  he  sold  by  the  executors,  the  eflect  in  this  Court  is 
to  convert  the  whole  estate  into  personalty  controlled  by  the 
law  of  the  doinicil.  Fletcher  vs.  Jishhiirner,  1  Br.  C.  C, 
497  ;  I  W.  and  T.  L.  C,  b%5,  Drayton  vs.  Rose,  7  Rich.  Eq., 
3S9;  Perry  vs.  Logan.,  5  Rich.  Eq.,  202.  This  point  of  equi- 
table conversion,  however,  is  not  important  in  its  consequen- 
ces, for  considering  the  real  estate  in  South  Carolina  un- 
clianged  in  its  character,  it  must  be  governed  by  the  law  of 
the  State  in  which  it  is  situated.  It  is  important,  however, 
to  fix  the  domicil  and  citizenship  of  testator  in  South  Caro- 
lina, in  reference  lo  his  duty  to  obey  the  laws  and  subserve 
the  policy  of  the  sovereignty  to  which  he  owed  allegiance. 
In  many  particulars,  one  in  his  lifetime  may  satisfy  and 
supersede  the  provisions  of  his  last  will,  by  himself  perform- 
ing the  acts  which,  in  the  uncertainty  of  his  continued 
existence,  he  had  directed  his  representatives  to  perform  after 
his  death,  and  he  may  do  some  things,  personally,  which  he 
could  not  empower  his  execuiors  to  do.  Manumission,  by 
will,  of  a  slave,  in  this  State,  is  absolutely  unlawful.  By 
our  Act  of  1800,  7  Stat.,  443,  the  legislatnre  declared  that 
no  emancipation  of  any  slave  shall  be  valid  or  lawful,  except 
it  be  by  deed,  and  according  to  the  regulations  therein  pre- 
scribed: And  in  case  any  slave  shall  be  hereafter  emanci- 
pated, or  set  free  otherwise  than  according  to  this  Act,  it 
shall,  and  may  be  lawful  for  any  person  whomsoever,  to  seize 
and  convert  to  his  or  her  own  use,  and  to  keep  as  his  or  her 
property,  the  said  slave  so  illegally  emancipated  or  set  free. 
And  it  was  enacted,  in  1820,  7  Stat.,  439,  that  no  slave  shall 
hereafter  be  emancipated  but  by  Act  of  the  legislature.  In 
May,  1835,  two  of  the  three  Judges  then  constituting  our 
Court  of  Appeals,  without    the    concurrence   of   Chancellor 


APPEALS  IN  EaUlTY.  455 


Columbia.  May,  ISGO. 


Harper,  and  reversing  the  circuit  decree  of  Chancellor  De 
Sanssure,  held  in  Frazier  vs.  Frazier,  2  Hill  C,  301,  that 
these  Acts  applied  ou\y  to  emancipation  within  the  State, 
and  that  a  testator  niiuht  anthorize  his  executors  to  remove 
a  slave  from  the  lin)its  of  the  State,  and  emancipate  him 
abroad.  In  December,  1835,  a  new  organization  of  the 
Courts  of  Appeals  was  adopted,  which,  with  certain  changes 
introduced  in  December,  1836,  still  subsists;  and  in  1S41,  in 
the  Act  applicable  to  this  case,  the  legislature  dispersed  any 
lingering  doubt  that  our  policy  was  against  emancipation 
nbique.  Even  this  Act  does  not  in  terms  inhibit  the  owner 
of  slaves  from  taking  them  abroad,  and  setting  them  free 
beyond  the  limits  of  the  State;  for  South  Carolina  does  not 
claim,  what  would  be  extravagant  in  any  political  commu- 
nity, general  extra-territorial  jurisdiction,  and  she  acknowl- 
edges the  citizen's  right  to  change  his  domicil.  An  unlim- 
ited inhibition  of  this  sort  would  seem  to  be  arrogant,  antl 
might  serve  to  prevent  a  proprietor  of  slaves  from  removing 
himself  and  them  for  any  purpose,  however  lawful.  But 
any  State  has  the  right  to  prevent  fraudulent  evasions  of  her 
laws  and  policy  by  her  own  citizens  ubicungue,  whenever 
the  deliiKiuent  citizens,  or  the  suljject,  come  within  her  juris- 
diction; and  her  judges  should  co-operate  in  promoting  such 
policy.  Is  it  not  as  much  against  the  spirit  of  the  Act  of 
1841,  and  equally  injurious  to  the  interest  of  the  community, 
for  the  master  to  remove  his  slaves  from  the  State  with  a 
view  to  their  emancipation,  as  for  him  to  direct  his  donee  or 
executor  to  consummate  the  act?  The  Act  avoids  any  de- 
vise or  becjuest  to  a  slave  indefinitely  as  to  place,  and  any 
gift  of  a  slave  for  the  end  of  emancipation  by  deed  or  other- 
wise, and  all  measures  to  defeat  its  scope  are  substantially 
prohibited.  The  object  of  the  legislature,  in  nil  its  enact- 
ments concerning  slaves  and  free  persons  of  color,  appears  to 
be  to  cherk  the  dnninution  of  slaves,  and  the  growth  of  free 
persons  of  color  in  our  midst  or  our  vicinage.     The  evils  of 


45(i  APPEALS  IN  EaUlTY. 

Willis  vs.  JollilFe. 

colouies  of  free  negroes,  near  our  borders,  are  well  stated  in 
Fisher^ s  7iegroes  vs.  Dohljs,  I  Yerger,  119. 

Id  speaking  of  the  policy  of  the  State  on  this  subject,  it  is 
not  intended  to  express  dissatisfaction  with  the  view  on  this 
point,  presented  by  Judge  Withers  in  this  case  on  the  issue 
of  probate,  10  Rich.  L.,  196,  nor  with  judge  Evans'  remarks 
in  O'Neallvs.  Farr,  1  Rich.  L..  89.  The  policy  of  the  State 
is  ascertained  by  the  declarations  of  the  sovereign  power  in 
the  Constitution  established  by  the  State,  and  by  the  enact- 
ments of  the  legislature,  to  whom  the  Constitution  has  com- 
mitted all  legislative  power.  Judges  are  not  permitted  to 
tread  on  the  "arena  of  politicians,  nor  to  ascertain  the  will  of 
the  peojjle,  however  monotonous  the  subject,  and  the  conse- 
quences involved,"  although,  individually,  they  may  sup- 
pose such  will  or  opinion  to  be  irregularly  pronounced 
throughout  "the  limits  of  the  State,''  if  this  will  has  not 
been  certified  by  the  Constitution  and  statutes.  Clearly,  a 
distinction  exists  between  the  policy  of  a  particular  statute 
and  the  policy  of  the  State.  In  interpreting  a  statute,  vi^e 
trace  its  history,  and  consider  the  old  law,  the  mischief  and 
the  remedy,  and  thus  ascertain  the  force  of  its  provisions; 
but  if  the  law  be  silent  on  any  given  subject,  Judges,  whose 
otfice  it  is  to  declare  and  not  to  make  law,  cannot  ascertain 
nor  change  the  law  by  any  speculative  considerations  as  to 
the  fitness  of  a  change,  nor  from  any  irregular  pronounce- 
ment of  popular  wishes,  anti  must  conform  to  the  Constitu- 
tion and  statutes.  The  policy  of  the  State,  however,  in  the 
judicial  enforcement  of  its  will,  is  not  confined  to  the  enact- 
ments of  special  statutes,  and  may  be  ascertained  from  the 
general  course  of  constitutional  legislation.  Dwar.  on  St., 
597.  It  cannot  be  doubted,  from  the  whole  course  of  our 
legislation  on  this  subject,  that  the  policy  of  the  State  is 
against  emancipation  of  slaves,  and  the  immigration  of  free 
negroes  among  us,  and  their  settlement  within  reach  of  con- 
tagion to  our  slaves.  In  Vineyard  vs.  Passalaigve,  2  Strob. 
L,,  536,  the  Court  of  Errors  granted  a  new  trial  because  the 


APPEALS  IN  EaUITY.  457 

Columbia,  May,  1860. 

jury  had  presntned  a  legislative  act  of  emancipation,  and 
affirmed  the  principle  that  snch  presnmption  is  contrary  to 
onr  policy  and  laws,  althongh  the  general  legislative  power, 
conferred  by  the  Constitntion,  is  not  restricted  in  this  par- 
ticnlar,  and  instances  of  emancipation  by  the  legislatnre, 
and  of  judicial  presumption  of  private  acts  not  against  pol- 
icy, frequently  appear.  The  same  principle  had  been  pre- 
viously recognized  in  relation  to  divorce,  in  McCdrh/  vs. 
McCarty,  2  St  rob.  L.,  6.  The  case  of  Hinds  vs.  Brazeale,  2 
How.  Miss.  R.,S37,  is  instructive  on  this  point — and,  indexed, 
on  most  of  the  questions  in  the  cause.  Elisha  Brazeale,  of 
Mississippi,  took  one  of  his  female  slaves  to  Ohio  and  eman- 
cipated her  there  by  deed,  which  was  recorded  both  in  Ohio 
and  JNIississippi.  She  was  educated  in  Ohio,  and  she  abided 
there  until  she  attained  maturity.  He  then  brought  her 
back  and  had  a  son  by  her;  and  the  three  lived  many  years 
in  Mississip})i,  until  the  death  of  Brazeale  there.  By  his 
will  he  confirmed  the  deed  of  emancipation,  and  gave  the 
whole  of  his  estate  to  her  and  her  son.  Some  of  his  next  of 
kin  from  North  Carolina,  by  bill  in  equity  in  Mississippi, 
claimed  the  estate,  and,  as  a  part  of  it,  the  woman  and  her 
son.  The  Court,  by  C.  J.  Sharkey,  decided  that  the  deed  of 
emancipation  was  invalid,  and  the  woman  and  her  son  still 
slaves  of  Brazeale's  estate — that  the  devises  and  be<juests  to 
these  slaves  were  void,  and  the  heirs  of  testator  entitled  to 
the  property.  The  C.  J.  says:  "To  give  validity  to  (he  deed 
of  emancipation,  would  be  a  violation  of  the  declared  policy 
of  the  State.  The  policy  of  a  State  is  indicated  by  the  gen- 
eral course  of  legislation  on  a  particular  subject,  and  we  find 
that  free  negroes  are  deemed  offensive,  because  they  are  not 
permitted  to  emigrate  hither,"  &c.  Such,  too,  is  the  |)()licy 
South  Carolina  declared  in  the  Act  of  1S3.5,  7  Stat.  S.  C, 
470,  and  other  statutes.  Again,  he  says:  "The  state  of  the 
case  shows  conclusively  that  the  emancipaiinn  had  its  origin 
in  an  offence  against  morality,  pernicious  and  detesialile  as 
an  example.     But,  above  all,  it  seems  to  have  been   planned 


458  APPEALS  IN  EaUITY. 

Willis  f  5.  Jolliffe. 

and  executed  with  a  fixed  design  to  evade  the  rigor  of  the 
laws  of  this  State.  The  acts  of  the  party  in  going  to  Ohio 
with  the  slave,  and  returning  himself  immediately  to  this 
State,  point  with  unerring  certainty  to  his  purpose  and  ob- 
ject. The  laws  of  tliis  State  cannot  be  thus  defrauded  of 
their  operation  by  one  of  our  own  citizens."  Again:  "As 
we  think  the  validity  of  the  deed  must  depend  upon  the 
laws  of  this  State,  it  becomes  unnecessary  to  inquire  wheth- 
er it  could  have  any  force  by  the  laws  of  Ohio.  If  it  were 
even  valid  there,  it  could  have  no  force  iiere."  If  these  be 
sound  doctrines,  they  must  control  the  present  controversy, 
for,  with  the  exception  tliat  the  woman  and  her  children  in 
Willis'  case,  have  not  returned  to  South  Carolina,  the  cir- 
cumstances here  tending  to  establish  emancipation  are  far 
feebler,  especially  in  the  formality  of  the  emancipation  and 
the  length  of  the  residence  of  the  legatees  in  Ohio,  while  the 
testator  was  living. 

The  last  remark  of  the  Chief  Justice  appositely  leads  to 
further  discussion  of  the  question,  wliether  the  law  of  South 
Carolina,  or  the  law  of  Ohio,  should  govern  the  decision  of 
this  matter  in  this  forum.  The  subject  of  litigation  is  per- 
sonalty, and  by  the  comity  of  nations  is  considered,  gen- 
erally, to  be  regulated  by  the  law  of  tlie  State  in  which  is 
the  owner's  domicil.  The  validity  and  construction  of  a 
contract,  as  the  lawfulness  of  any  transaction,  are  usually 
governed  by  the  law  of  the  place  where  the  contract  was 
made  or  the  thing  done;  but  if  a  contract  be  made  in  one 
Slate  to  be  performed  in  another,  the  general  rule  is,  that  the 
construction  and  force  of  the  contract  are  determined  by  the 
law  of  the  State  where  it  is  to  be  executed.  1  N.  and  IMcC, 
173,  u.  «  to  2  ed. ;  2  Hill,  319,  601.  According  to  this 
view,  as  the  testator  lived  in  South  Carolina,  and  his  will 
was  intended  to  operate  on  property  which,  for  the  most 
part  actually,  and  in  the  whole  constructively,  was  in  this 
State,  the  construction  and  force  of  his  will  must  depend  on 
our  law.     In  Mary  vs.  Morris,  7  La.  R.,  135,  a  bequest  of 


APPEALS  IN  EaUITY.  459 

Columbia,  May.  IsOO. 

freedom  to  a  slave,  made  by  a  citizen  of  Georgia,  was  lield 
void  by  tlie  Court  of  Louisiana,  in  a  snit  by  the  slave  for  her 
freedom  in  Louisiana,  because  the  laws  of  Georgia  inhibited 
emancipation  by  will,  although  this  mode  was  permitted  in 
Louisiana.  It  is  the  opinion  of  most  foreign  jurists,  (Slo. 
Con.  L.,  c.  4,  passim,)  tliat  personal  laws  regulating  the 
capacity  and  status  of  persons,  when  they  have  once  at- 
tached upon  a  person  by  the  law  of  his  domicil,  follow  the 
person  everywhere,  as  a  shadow,  so  long  as  his  domicil 
remains  unchanged,  and  are  of  universal  obligation,  even  in 
relation  to  transactions  in  any  foreign  country,  where  the 
regulations  may  be  dilFerent.  Thus  a  minor,  a  married  wo- 
man, or  any  other  person  who  is  deemed  incapable  of  trans- 
acting business  {non  sui  juris)  in  the  place  of  domicil,  will 
be  deemed  incapable  everywhere,  not  only  as  to  transactions 
in  the  place  of  domicil,  but  as  to  transactions  in  every  other 
place.  lb.,  sec.  ^5.  Such  persona!  laws  exert  their  author- 
ity wherever  the  party  goes  to  contract,  and  extend  over  all 
his  property,  wherever  or  under  whatever  customs  it  may 
be  situated.  lb.,  sec.  51,  a.  If  we  adopt,  however,  the  mod- 
ification of  this  doctrine,  by  Huber,  which  is  approved  by 
Judge  Story,  lb.,  sec.  98,  and  by  Chancellor  Kent,  (2  K.,  457, 
Lect.  39,)  the  bearing  on  this  case  will  be  the  same:  "No 
nation  is  under  obligation  to  give  effect  to  the  laws  of  any 
other  nation,  which  are  prejudicial  to  itself  or  to  its  own  citi- 
zens; and  in  all  cases  every  nation  must  judge  for  itself 
what  foreign  laws  are  so  prejudicial  or  not.  Every  independ- 
ent community  will  judge  for  itself,  how  dxr  Ihe  comii as  inter 
cutjimuuitatcs  is  to  be  permitted  to  interfere  with  its  domes- 
tic interests  and  policy."  "  It  is  a  maxim  that  locus  regit 
a^tum,  unless  the  intention  of  the  parlies  to  the  contrary  be 
clearly  shown.  It  is,  however,  a  necessary  exception  to  the 
universality  of  the  rule,  that  no  people  is  bound  to  enforce, 
or  hold  valid  in  its  Courts  of  justice,  any  contract  which  is 
injurious  to  its  public  rights,  or  offends  its  morals,  or  contra- 
venes its  policy,  or  violates  a  public  law."     On  this  moder- 


4<)0  APPEALS  IN  EUUITY. 

Willis  vs.  Jolliffe. 

ated  view  it  is  the  duty  of  tribunals  in  South  Carolina  to 
decide  according  to  its  laws  and  authenticated  policy,  how- 
ever different  might  be  the  opinions  of  the  government  of 
Ohio.  According  to  the  teaching  of  the  foreign  jurists,  the 
Courts  of  Ohio  should  conform  their  judgments  as  to  per- 
sonal capacity  and  condition,  and  the  attendant  rights  of 
property,  to  the  prescripts  of  the  country  of  domicil ;  but, 
conceding  the  exception,  that  transactions  relating  to  property 
actually  being  within  her  limits  may  be  judged  in  that  State 
according  to  her  domestic  interests  and  policy,  she  cannot 
legitimately  dispute  the  exercise  of  authority  and  judgment 
proceeding  on  the  same  principle  in  another  State,  as  to 
property  within  its  limits.  The  testator  acquired  no  don^iicil 
in  Ohio;  and  South  Carolina,  in  becoming  respect  to  herself, 
cannot  recognize  any  sovereign  and  extra-territorial  right  in 
a  foreign  State  to  transmute  what  is  considered  here  a  chattel 
into  a  free  person,  capable  of  descent  and  purchase  here, 
because  this  being  has  touched  foreign  soil.  Such  foreign 
State  may  claim  fitly  some  lawful  rights  under  such  circum- 
stances, but  a  pretension  like  this  is  preposterous.  In  Strader 
vs.  Graham,  7  B.  Mon.,  635,  it  was  held,  that  when  a  citizen 
of  Kentucky  visited  Ohio  with  his  slave,  the  relation  of  mas- 
ter and  slave  existing  under  the  laws  of  the  former  State,  is 
not  thereby  disturbed;  and  T.  A.  Marshall,  C.  J.,  in  deliver- 
ing the  opinion  of  the  Court,  remarks,  that  the  judgment 
proceeds  on  the  principle  that  the  slave  was  never  free,  and 
not  on  the  ground  that  having  become  free  by  the  visit,  the 
condition  of  slavery  re-attached  by  return  to  a  slaveholding 
community.  The  case  was  taken  to  the  Supreme  Court  of 
the  United  States — 10  How.,  82,  and  atlirmed:  Taney,  C.  J,, 
declaring  that  Kentucky  alone  had  the  right  to  determine  the 
status  or  domestic  and  social  condition  of  the  persons  domi- 
ciled within  its  territory,  except  as  restrained  by  the  Consti- 
tution of  the  United  States.  Judge  Story  (Conf.  L.,  472  a,  4 
ed.)  remarking  on  the  case  of  Mahorne  vs.  Hoe,  9  Sm.  & 
Mar.,  317,  says  :  "  A  pertinent  illustration  as  to  the  effect  of 


APPEALS  IN  EaUlTY.  401 


Columbia,  May,  IbOO. 


a  will  abroad,  whoii  its  provisions  conflict  with  the  jirohibi- 
tory  laws  of  another  State,  recently  occurred  in  America.  A 
person  domiciled  in  Virginia,  by  his  will  made  and  executed 
in  that  State,  directed  that  certain  of  his  slaves,  then  being 
in  Mississippi,  should  he  emancipated  and  sent  to  Africa. 
By  the  law  of  Virginia,  such  a  disposition  was  valid  ;  by  the 
law  of  Mississippi  it  was  not.  The  Courts  of  the  latter  State 
held  the  will  inoperative  as  to  the  slaves  in  that  State, 
because  it  contravened  the  public  policy  of  the  State  as 
declared  by  an  express  statute,  and  was  not  embraced  in  the 
general  rule  of  comity,  regulating  the  law  of  domicil."  The 
local  policy  of  the  United  States  is  enforced  in  her  Courts 
even  in  relation  to  foreign  patents  and  copy  rights. 

It  is  quite  plain  that  Amy  and  her  brood  are  considered 
free  persons  by  the  constituted  authorities  of  Ohio,  The 
Constitution  of  that  State,  pursuing  the  ordinance  of  1787, 
provides  that  slavery,  or  involuntary  servitude,  except  for 
crime,  shall  not  exist  in  her  territory  ;  and  experts  in  the  law 
of  that  State,  examined  by  commission  in  this  case,  depose 
that  no  form  of  emancipation  is  prescribed  by  her  statutes, 
and  that  one  a  slave  elsewhere  becomes  a  freeman  eo  instanli, 
on  being  voluntarily  inlroducod  by  a  former  master.  It  is  a 
fact  of  some  significance,  that  Jolliflfc,  the  executor,  after  the 
death  of  testator,  not  content  with  the  ipso  facto  manumis- 
sion by  contact  with  the  soil  and  atmosphere  of  Ohio,  execu- 
ted formal  deeds  of  emancipation  to  the  legatees  in  question. 
His  deeds  could  not  make  them  free,  nor  consummate  an 
incomplete  condition  of  freedom;  Bazzi  v.  Rose,  8  Mart. 
La.  R.,  149;  but  after  the  decision  of  .Anderson  v.  Poindex- 
tcr,  6  Crutchf.  0.  R.,  622,  it  can  hardly  be  questioned,  that 
his  acts  were  there  merely  in  "  ridiculous  excess,"  attempting 
"to  throw  a  perfume  on  the  violet."  It  was  held  by  the  Ohio 
Court  in  that  case,  in  December,  1S5G,  after  the  Ured  Scott 
decision  was  known  there,  as  manifested  on  pages  641,  644, 
674,  723,  that  a  slave  sent  into  Ohio  for  a  few  hours,  for  a 
doctor,  from  Campbell  county,  Kentucky,  about  a  mile  from 


462  APPEALS  IN  EQUITY. 


Willis  r*.  Joilifle. 


the  Ohio  river,  coterminous  of  the  two  States,  ipso  facto 
became  free,  notwitlistanding  lie  returned  to  Kentucky,  and 
served  his  master  for  years  afterwards.  Mr.  JolMtfe  was  the 
counsel  of  those  claiming  under  the  negro.  Bartley,  C.  J., 
dissented  from  the  majority  of  the  Court  on  the  main  point, 
in  a  very  able  and  learned  opinion.  It  may  be  true  that 
this  case  might  have  been  decided  on  another  ground,  in 
which  all  the  Judges  concurred — the  incompetency  of  the 
slave  to  contract  by  the  law  of  Kentucky — but  almost  the 
whole  of  the  argumentation  by  the  Judges  was  as  to  the 
freedom  of  Poindexter,  and  the  case  affords  unmistakeable 
evidence  of  the  strength  of  judicial  opinion  there  on  this 
point.  The  opinions  of  the  majority  abound  in  denuncia- 
tions of  slavery,  and  explicitly  adopt  the  dogma  of  modern 
illuminati,  that  there  can  be  no  property  in  men. 

Lord  Coke  has  instructed  us  that  no  man  can  be  wiser  than 
the  law.  And  Lord  Stowell  has  pronounced  from  the  seat 
of  judgment,  when  treating  of  the  slave  trade,  Le  Louis,  2 
Dod.,  249,  that  "no  Court  can  carry  its  private  apprehensions 
independent  of  the  law,  into  its  public  judgments  on  the 
quality  of  actions.  It  must  conform  to  tiie  judgment  of  the 
law,  and  acting  as  a  Court  iikthe  administration  of  the  law, 
it  cantiot  attribute  criminality  to  an  act  when  the  law  imputes 
none.  It  must  look  to  the  legal  standard  of  morality;  and, 
upon  a  question  of  this  nature,  that  standard  must  be  found 
in  the  law  of  nations,  as  fixed  and  evidenced  by  general  and 
ancient  and  admitted  practice — by  treaties,  and  the  general 
tenor  of  the  laws  and  ordinances,  and  the  formal  transactions 
of  civilized  States,"  &c.  And  in  the  case  of  the  Antelope, 
10  Wiieat.,  120,  Marshall,  C.  J.,  pursues  the  same  train  of 
thought,  saying,  among  other  things:  "  Slavery  has  its  origin 
in  force,  but  as  the  world  has  agreed  that  it  is  a  legitimate 
result  of  force,  the  state  of  things  that  is  thus  produced  by 
general  consent,  cannot  be  pronounced  unlawful.  Through- 
out the  whole  extent  of  the  immense  comment  of  Africa,  so 
far  as  we  know  its  history,  it  is  still  the  law  of  nations  that 


APPEALS  IN  EaUITY.  46:J 

Columbia,  May,  ISGO. 

prisonrrs  are  slaves.  Wl)atevcr  might  be  the  answer  of  a 
moralist  to  the  (jiiestion  as  to  the  propriety  of  )>arlicipating 
in  the  slave;  trade,  hy  pnrchasing  tlie  beings  who  arc  its  vic- 
tims, a  jnrist  must  seareh  for  its  legal  solution  in  those  prin- 
ciples of  action  which  are  sanctioned  by  the  nsages,  tlie 
national  acts,  and  the  general  assent  of  that  portion  of  the 
world  of  which  he  considers  himself  a  part,  and  to  whose 
law  the  appeal  is  made.  If  we  resort  to  this  standard  as  a 
lest  of  international  law,  the  (picstion  is  decided  in  favor  of 
the  legality  of  the  trade;  and  a  jurist  could  not  say  that  one 
engaged  in  it  was  punishable  in  person  or  property."  If  all 
this  be  true  as  to  the  foreign  slave  trade,  how  much  less  can 
the  lawfulness  of  slavery,  as  it  exists  in  South  Carolina,  be 
doubted  hv  her  Judges.  Personal  slavery  arising  out  of  for- 
cible captivity,  is  coeval  with  the  earliest  periods  of  the  his- 
tory of  mankind.  It  is  found  existing,  and  so  far  as  api)ears, 
without  animadversion,  in  the  earliest  and  most  authentic 
records  of  the  human  race.  It  is  recognized  by  the  codes  of 
the  most  polished  races  of  antiquity.  Under  the  light  of 
Christianity  itself,  the  possession  of  persons  so  acquired  has 
been  in  every  civilized  country  invested  with  the  character  of 
property,  and  secured  as  such  by  all  the  protections  of  law. 
Solemn  treaties  have  been  framed,  and  national  monopolies 
eagerly  sought  to  facilitate  the  commerce  in  this  asserted 
property ;  and  all  this  with  all  the  sanction  of  law,  public  and 
municipal.  Le Louis,  2  l)od.,250;  Wildm.  Int.  L.,  10.  1 
must  h<!  consistent  with  nature,  for  in  some  form  or  other  it 
is  inevitable;  and,  in  fact,  prevails  universally. 

Without  expatiating  on  a  theological  question,  it  may  be 
safely  alFirmed  that  slavery  is  not  contrary  to  the  divine  law 
promulgated  in  the  Holy  Scriptuies.  It  was  sanctioned  and 
regulated  under  the  Mosaic  dispensation,  Exod.  xxi,  4,  5,  6 ; 
Exod.  xxii;  Levit.  xxv,  44— Ifi ;  and  the  duties  growing  out 
of  the  relation  of  master  and  slave,  without  a  word  of  anim- 
adversion on  the  relation   itself,  are  distinctly  taught  in   the 


464  APPEALS  IN  EQUITY. 


Willis  vs.  .loll i tie. 


New  Testament.  Titiis  ii,  9 ;  1  Ep.  Pet.  ii,  IS;  1  Tim.  vi; 
Col.  iii,  22;  Eph.  vi,  5;  Ep.  to  Phil. 

Property  in  men,  as  it  exists  here,  does  not  imply,  as 
Blackstone  defines  slavery,  "  absolute  and  unlimited  power 
in  the  master  over  the  life  and  fortune  of  the  slave  ;"  and 
merely  includes  the  right  of  the  master  to  "the  perpetual 
service  of  the  slave,"  which  he  treats  as  lawful,  and  "  no 
more  than  the  same  state  of  subjection  for  life  which  every 
apprentice  submits  to  for  a  term  of  years."  1  Bl.,  423,  424, 
127.  He  says  that  "pure  and  proper  slavery,"  where  "the 
life  and  liberty  of  the  slave  are  in  the  master's  disposal,  can- 
not subsist  in  England;"  nor  did  it  ever  subsist  in  South 
Carolina.  A  master  has  no  such  property  here  in  the  flesh 
and  blood  of  his  slave  as  empowers  him  to  treat  the  slave  in 
any  respect  simply  as  a  brute,  as  by  taking  his  life,  or  exer- 
cising cruelty  towards  the  inferior  owing  service.  He  cannot 
kill  and  eat  his  slave  as  he  may  his  lambs  and  ducks,  for 
cannibalism  does  not  prevail,  and  murder  of  a  slave  is  capi- 
tally punished,  and  any  unlawful  killing  meets  its  appropri- 
ate pain.  He  cannot  beat  the  slave  cruelly,  nor  exact  from 
him  excessive  labor,  nor  withhold  the  necessary  food,  rai- 
ment and  lodging,  nor  abandon  him  when  sick  or  superan- 
nuated ;  for  all  these  are  misdemeanors.  Our  Act  of  1740, 
7  Stat.,  396,  declares  that  all  negroes  and  all  the  issue  of  their 
females,  who  are,  or  shall  be  in  the  province,  shall  be  and 
remain  forever  slaves,  and  be  deemed,  held  and  adjudged  to 
be  chattels  personal,  to  all  intents  and  purposes  whatsoever; 
and  this  enactment  has  never  been  abrogated  or  changed,  but 
it  applies  to  them  exclusively  as  property,  and  their  bifold 
character  as  property  and  men,  is  fully  recognized  by  our 
laws;  and  in  our  domestic  servitude,  the  humane  treatment 
and  comfort  of  the  inferior  in  relation  are  as  well  secured  as 
in  the  organization  of  labor  in  any  country. 

Blackstone  v/rote  before  the  celebrated  decision  of  Lord 
Mansfield,  in  Somerset's  case,  in  1771,  20  How.  St.  Tr.,  1  ; 
Lofi't,  1  ;  11  St.  Tr.,  Harg.,  310  ;  and,  as  we  derive  the  com- 


APPEALS  IN  EaUITY.  405 

Colnnibia,  May,  1860. 

moil  law  and  most  of  our  institutions  from  England,  it  is  not 
inappropriate  to  examine,  with  more  minuteness,  the  varying 
condition  of  the  law  there  on  this  partienlar  subject.  This 
point  has  been  carefully  and  ably  discussed  by  Lord  Stowell, 
in  The  slave  Grace,  2  Hagg,  Ad.  R.,  94  ;  Chilton,  C.  J.,  in 
Atwood  vs.  Beck,  21  Ala.  R.,  602  ;  Bartley,  C.  J.,  in  roiJi- 
dextcr\<i  case,  supra,  and  by  Mr.  Benjamin,  Senator  from 
Louisiana,  in  his  speech  in  the  U.  S.  Senate,  March  11, 
1S5S  ;  and  these  jurists  furnish  the  materials  of  most  of  the 
following  remarks  on  this  topic:  In  Pearne  vs.  Lisle,  in 
1749,  1  Amb.,  75,  L.  C.  Hardwicke  says,  that  "  though  the 
statute  of  tenures  had  abolished  villeins  regardant  to  a 
manor,  a  man  might  still  become  a  villein  in  gross  ;"  and 
Lord  Mansfield,  in  SomcrscPs  case,  seems  to  approve  the 
doctrine.  Villeinage  in  gross  in  England  is  identical  with 
slavery  in  South  Carolina,  in  many  respects,  differing  mainly 
as  to  the  civil  remedies  of  serf  and  slave  on  the  master;  and 
this  sort  of  villeinage  was  adopted  by  our  Act  of  1712.  The 
villein  in  gross,  with  his  issue,  owed  service  to  his  master  for 
life,  and  could  be  sold  and  transferred  like  a  chattel.  In  his 
learned  argument  for  Somerset,  20  How.  Sl  Tr,,  36,  Mr.  Har- 
grave  says:  "The  condition  of  a  villein  had  most  of  the  inci- 
dents of  slavery  in  general.  His  service  was  indeterminate, 
and  such  as  his  lord  thought  fit  to  require.  He  knew  not 
in  the  evening  what  he  was  to  do  in  the  morning;  he  was 
bound  to  do  whatever  he  was  commanded  ;  he  was  liable  Xo 
beating,  imprisonment,  and  every  other  chastisement  his  lord 
might  prescribe,  except  killing  and  maiming.  He  was  inca- 
pable of  acquiring  for  his  own  benefit,  the  rule  being  qitic- 
quid  acqiiiritiir  servo,  acqviritur  dominn.  He  was  himself 
the  subject  of  property;  as  such,  saleable  and  transmissible." 
This  is  an  apt  description  of  our  slave.  It  is  said  that  lim- 
ited serfdom  still  exists  in  England,  among  the  bondagors  of 
Norlhuniberland. — So.  Qu.  Rev.,  vol.  1  (N.  S.)  83 — quoting 
as  authority  H<nvitt's  Rural  Life  in  England. 

African  slavery  was  formerly  recognized  in  her  Courts.     In 
31 


466  APPEALS  IN  EQUITY. 

Willis  vs.  JoUiffe. 

Smith  vs.  Brown,  2  Salk.,  666,  2  Ld.  Raym.,  1274,  S.  C, 
plaintiff  declared  in  indeb.  ass.  for  the  price  of  a  negro  sold 
in  London,  and  had  a  verdict ;  and,  on  motion  in  arrest  of 
jndgment.  Holt,  C.  J.,  held,  that  "as  soon  as  a  negro  conies 
into  England,  he  becomes  free;  one  may  be  a  villein  in  Eng- 
land, but  not  a  slave  ;"  and  he  directed  that  the  declaration 
should  be  amended  by  stating,  that  the  negro  sold  in  London 
was,  at  the  time  of  sale,  in  Virginia;  and  that  by  the  laws 
and  statutes  of  that  colony,  negroes  are  saleable  as  chattels. 
Then  the  Att.  Gen.  said  they  were  inheritances,  and  transfer- 
able by  deed  only,  "and  nothing  was  done."  In  Smith  vs. 
Gould,  lb.,  (1707,)  which  was  U over  pro  uno  JEthiopevocato 
a  negro,  after  verdict  for  plaintiff,  on  motion  in  arrest  of  judg- 
ment it  was  argued,  (with  no  other  plausibihty  than  that 
chattel  and  cattle  have  the  same  derivation,  and  originally 
had  the  same  meaning,)  that  the  owner  had  not  an  absolute 
property  in  a  negro;  he  could  not  kill  Iiim  as  he  could  an 
ox;  (the  argument  for  the  plaintiff  is  sensible  and  learned,) 
and  the  Court  said,  "  men  may  be  the  owners,  and,  therefore, 
cannot  be  the  subject  of  property."  (What  logic!)  "Vil- 
leinage arose  from  captivity,  and  a  man  may  have  trespass 
qiiare  captivum  siiwn  cepit,  but  cannot  have  trover  de  gallico 
suo^''  for  his  Frenchman.  And,  says  the  reporter:  "The 
Court  seemed  to  think  that  in  trespass  quart  captivum  siium 
cepit,  the  plaintiff  may  give  in  evidence  that  the  party  was 
his  negro,  and  he  bought  him."  This  case  seems  to  hold 
that  tresj)ass,  not  trover,  should  be  brought  for  the  recovery 
of  a  negro.  In  Chamberlain  vs.  Harvey,  1  Ld.  Raym.,  146, 
(1695,)  an  action  of  trespass  for  taking  away  a  negro  was 
dismissed,  because  the  averment  per  quod  servitium  amisit 
was  omitted  in  the  declaration.  In  Butts  vs.  Penny,  3  Keb., 
785,  2  Lev.,  201,  (1675,)  which  was  trover  for  ten  negroes,  it 
was  held  that  the  action  should  be  sustained,  as  there  was 
■sufficient  property  in  negroes,  they  being  usually  bought  and 
sold  among  merchants  in  India,  and  being  infidels  ;  yet  the 
case  was  postponed  to  the.  next  term,  and  no  final  judgment 


APPEALS  IN  EaUITY.  467 

Columbia,  May,  IStiO. 

appears.  And  in  Jelly  vs.  Clice,  (1693,)  cited  1  Ld.  Raym., 
147,  it  was  held  that  trover  would  lie  for  negroes,  "  for  they 
were  heathens,  and,  therefore,  a  man  may  have  property  in 
tliem ;  and  that  the  Court,  without  averment  made,  would 
take  notice  that  they  were  heathens."  See  Co.  Litt.,  116,  b; 
Calvin^s  case,  7  Rep.,  33  ;  Fable  vs.  Brown,  2  Hill,  C,  390  ; 
Swinhnrn,S4;  Mirror,  c.  2,  sec.  28.  In  a  case,  3  Mod.  R., 
120,  189,  Sir  Thomas  Grantham  "bought  a  monster  in  the 
Indies,  which  was  a  man  of  that  country,  which  had  the 
perfect  shape  of  a  child  growing  out  of  his  breast,  as  an 
cxcrescency,  all  but  the  head,  and  brought  him  to  England, 
and  exposed  him  to  the  sight  of  the  people  for  profit.  The 
Indian  turned  Christian,  and  was  baptized,  and  was  detained 
from  his  master,  who  brought  homiiie  repleghindo  for  his 
recovery;"  and  Sir  Thomas  had  relief.  Lord  Hardwicke 
said,  in  Pearne  vs.  Lisle,  supra,  "I  have  no  doubt  that  trover 
will  lie  for  a  negro  slave;  it  is  as  much  property  as  any  other 
thing.  The  case  in  2  Salk.,  666,  Smith  vs.  Gnnld,  was  deter- 
mined on  a  want  of  proper  description.  It  was  trover  pro 
xino  JEthiope  vocato  negro,  without  saying  slave  ;  and  the 
being  negro  did  not  necessarily  imply  slave.  The  reason 
said  at  the  bar  to  have  been  given  by  Lord  C.  J.  Holt  in  that 
case,  as  the  cause  of  his  doubts,  viz:  That  the  moment  a 
slave  sets  foot  in  England,  he  becomes  free,  has  no  weiglit 
with  it,  nor  can  any  reason  be  found  why  he  should  not  be 
equally  so  when  he  sets  foot  in  Jamaica,  or  any  other  Eng- 
lish plantation.  All  our  colonies  are  snl)jcct  to  the  laws  of 
England,  although  as  to  some  purposes  they  have  laws  of 
their  own.  There  was  once  a  doubt  whether,  if  negroes 
were  christened,  they  would  not  become  free  by  that  act  ; 
and  there  were  precauti(jns  taken  in  the  colonies  to  prevent 
their  being  baptized,  till  the  opinion  of  Lord  Talbot  and 
myself,  then  Attorney  General,  and  Solicitor  General,  was 
taken  on  that  point.  We  were  both  of  ojiinion  that  it  did 
not  at  all  alter  their  state."  Lord  Stowell,  in  the  case  of 
Grace,  2    Hag.    Ad.   R.,    1 15,  cites,  without  aj)proval,  the   re- 


4G8  APPEALS  IN  EaUITY. 

Willis  vs.  Jollifle. 

marks  of  Lord  Ch.  Nortliington,  in  Shanley  vs.  Harvey.,  1 
Eden,  (1762,)  that  "  a  negro  may  maintain  an  action  against 
his  master  for  ill  nsage,  and  may  have  habeas  corpus  if 
restrained  of  his  liberty,"  founding  himself  on  the  "  wise 
saw,"  that  as  soon  as  a  man  sets  foot  on  English  ground,  he 
is  free.  The  notion  of  purification  and  enfranchisement  by 
simple  contact  with  the  soil  or  atmosphere  of  England,  is 
nnintelligible.  There  has  been  no  spt.'cial  endowment  of  its 
air  or  eaith  since  the  long  sway  of  slavery  there  has  ceased. 
Mr.  Christian,  n.  6,  1  Bl.  Com.,  127,  supposes  that  the  obli- 
gation of  negroes  is  not  to  the  soil  and  air  of  England,  but 
to  the  efficacy  of  the  writ  of  habeas  corpus.  And  C.  J.  Bart- 
ley  remarks,  6  Crutch.,  695:  "There  is  nothing  in  the  physi- 
cal properties  of  either  the  soil  or  atmosphere  of  Ohio  which 
can  have  any  such  effect  on  the  civil  state  and  condition  of  a 
person.'' 

Lord  Mansfield,  in  Somerset's  case,  used  no  such  piirase. 
He  held  there  on  habeas  corpus,  that  the  return  of  the  cause 
of  detention  of  a  negro  in  irons  aboard  a  sliip,  made  by  the 
commander  of  the  ship,  and  not  by  the  owner  of  the  slave, 
was  insufficient;  the  return  stating  that  the  negro  was  the 
slave  of  Charles  Stewart,  of  Virginia,  and  had  fled  from  his 
service  in  England,  and  had  been  committed  to  the  custody 
of  the  captain,  to  be  kept  and  conveyed  to  Jamaica,  and  there 
sold.  The  judgment  was  pronounced  with  reluctance  and 
hesitation,  after  urgent  exhortations  to  the  parties  to  compro- 
mise or  apply  to  parliament.  By  the  statutes  of  Virginia, 
then  and  long  afterwards  of  force,  slaves  were  not  chattels, 
but  inheritable  and  transmissible  as  real  estate.  The  master 
of  the  slave  was  staying  in  England  for  a  long  and  indefinite 
term,  and  he  might  be  regarded  as  domiciled  there.  This 
eminent  Judge  says,  in  delivering  the  opinion  of  K.  B.  : 
"  The  only  question  before  us  is,  whether  the  cause  on  the 
return  is  sufficient?  That  return  states  that  the  slave  de- 
parted, and  refused  to  serve,  whereupon  he  was  kept  to  be 
sold  abroad.    So  high  an  act  of  dominion  must  be  recognized 


APPEALS  IN  EaUITY.  4G9 

Columbia,  May.  1860. 

by  tlie  law  of  the  country  where  it  is  used.  The  power  of  a 
master  over  his  slave  has  been  extremely  dilTereiit  in  dilfer- 
ent  countries.  The  state  of  slavery  is  of  such  a  nature, 
that  it  is  incapable  of  being  introduced  on  any  reasons, 
moral  or  political,  but  only  by  positive  law,  which  ]ircscrves 
its  force  long  after  the  reasons,  occasions  and  time  itself, 
from  which  it  was  created,  are  erased  from  memory.  It 
is  so  odious  that  nothing  can  he  suffered  to  support  it  but 
positive  law."  Now,  the  mandatory  judgment  in  this  case — 
the  icico  considcratum  est — is  simply  tfiat  so  high  an  act  of 
dominion  as  the  keeping  in  irons  and  sending  abroad  a  slave 
for  sale,  to  a  country  different  from  the  master's  domicil, 
could  not  be  supported  by  the  law  of  England.  It  cannot  be 
ingenuously  questioned  that  Lord  ALansfield  intended  to  dis- 
credit negro  slavery  in  England;  but  some  of  the  inferences 
from  his  opinion,  drawn  by  Judge  Story,  Chief  Justice  Shaw, 
and  others,  may  be  fairly  disputed.  What  was  nieant  by  the 
phrase  "positive  law,"  in  this  opinion,  is  sufficiently  ex- 
plained in  the  case  of  jJves,  18  Pick.,  119.  "By  'positive 
law,'  in  this  connection,  may  be  as  well  understood  custom- 
ary law  as  the  enactment  of  a  statute ;  and  the  word  is  used 
to  designate  rules  established  by  tacit  acquiescence,  or  by  the 
legislative  act  of  a  State,  and  whicli  derive  their  force  and 
authority  from  such  acquiescence  or  enactment,  and  not 
because  they  are  the  dictates  of  natural  justice,  and  as  such, 
of  universal  obligation."  Lord  Mansfield  does  not  review 
and  overrule  the  previous  cases,  and  does  not  dispute  the 
tenet  that  there  may  be  property  in  a  slave  in  England.  On 
the  contrary,  he  approves,  or  to  use  his  own  phrase,  "we  pay 
all  due  attention  to  the  opinion  of  Lord  Ilardwicke  and  Tal- 
bot," above  quoted,  and  says:  "contract  for  tlie  sale  of  a 
slave  is  good  here  ;  the  sale  is  a  matter  to  which  the  law 
properly  and  readily  attaches,  and  will  maintain  the  price 
according  to  the  agreement.  Hut  here  the  person  of  the 
slave  himself  is  immediately  the  oliject  of  inquiry,  which 
makes  a  very   material  difl'erence  ;"  and  concludes,  "  what- 


470  APPEALS  IN  EQUITY. 

Willis  vs.  Jolliffe. 

ever  inconveniences,  therefore,  may  follow  from  the  decision, 
I  cannot  say  this  case  is  allowed  or  approved  by  the  law  of 
England;  and,  therefore,  the  black  must  be  discharged." 
Indeed,  he  conld  not  liave  determined  that  there  was  no 
property  in  a  slave,  except  by  overturning  mnch  of  the  com- 
mon law,  and  usurping  legislative  anthority. 

Before  the  American  Revolution,  and  until  the  Act  of  Par- 
liament of  1807,47  Geo.  Ill,  c.  36,  abolishing  the  slave  trade 
after  March  1,  ISOS,  so  far  as  the  English  colonies  were  con- 
cerned, the  statutes  and  treaties  and  orders  in  council  of 
Great  Britain,  demonstrate  the  anxious  persistence  of  that 
government  in  the  establishment  of  slavery  in  her  American 
colonies.  In  the  reigns  of  the  Stuarts,  royal  charters  were 
granted  to  companies  of  merchants,  with  peculiar  privileges, 
to  carry  on  the  trade  in  Africans;  but  the  merchants  gener- 
ally, by  their  petitions,  and  the  House  of  Commons,  by  their 
resolutions,  insisted  that  "all  had  a  natural  right  to  engage 
in  the  business;"  and  in  1697,  by  Stat.  9  and  10  William 
III,  the  monopoly  was  greatly  relaxed,  the  statute  declaring 
in  the  preamble  that  "the  trade  was  highly  beneficial  and 
advantageous  to  the  kingdom."  About  this  time  a  question 
arose  in  the  Privy  Council  as  to  the  true  character  of  the 
slaves  thus  exported,  which  was  referred  to  the  twelve  Judges, 
and  they,  with  Lord  Holt  at  their  head,  returned  this  answer: 
'•  In  pursuance  of  liis  Majesty's  order  in  council,  hereunto 
antjexed,  we  do  humbly  certify  our  opinion  to  be,  that  negroes 
are  merchandize."  At  the  peace  of  Utrecht,  in  1713,  an 
assiento,  or  contract,  which  had  been  made  between  Spain 
and  the  Royal  Guinea  Company  of  France,  for  the  supply 
of  slaves  to  tlie  Spanish  colonies,  was  transferred  to  Great 
Britain  ;  and  by  an  article  in  the  treaty,  the  exclusive  right 
of  that  nation  to  supply  the  Spanish  colonies  with  slaves,  to 
the  number  of  four  thousand  eight  hundred  annually,  for 
thirty  years,  at  a  fixed  price,  was  carefully  secured.  In  1732, 
by  5  Geo.  II,  c.  7,  of  force  in  South  Carolina,  2  Stat.,  570, 
negroes  were  declared  assets  for  the  satisfaction  of  debts  in 


APPEALS  IN  EaUITY.  471 


Columbia,  May.  ISOO. 


the  British  plantations  in  America,  and  for  this  purpose  lia- 
ble to  be  seized  and  sold  as  personalty.  In  1749,  Stat.  23 
Geo.  II,  c.  31,  declared  "the  slave  trade  to  be  very  advan- 
tageous to  Great  Britain,  and  necessary  for  snpplying  the 
plantations  and  colonies  therennto  belonging  with  a  siilii- 
cient  numher  of  negroes  at  reasonable  rates,"  and  annulled 
the  monopolies  in  the  trade.  In  1760,  South  Carolina  passed 
an  act  prohibiting  the  further  importation  of  African  slaves; 
but  the  act  was  rejected  by  the  Crown,  the  Governor  was 
reprimanded,  and  a  circular  was  sent  to  all  the  colonies, 
warning  thcni  against  presuming  to  countenance  such  legis- 
lation. Cong.  Globe,  1S57-S,  10()6.  It  is  said  that  twenty- 
similar  acts  of  the  legislative  assembly  of  Virginia,  while  a 
province,  met  with  the  same  veto.  In  1774,  a  bill  for  the 
same  end  passed  the  two  houses  of  JVIassachusetts,  which 
Governor  Hutchinson  refused  to  sign,  because  forl)idden  hy 
his  instructions;  and  his  successor.  General  Gage,  refused  his 
assent  to  a  like  bill,  and  for  the  same  reason.  41  N.  Am. 
Rev.,  KS9.  In  1775,  after  the  clangor  of  arms  had  resounded 
in  the  Revolutionary  war.  Earl  Dartmouth,  Secretary  of  Slate, 
replied  to  a  remonstrance  of  a  colonial  agent:  "We  cannot 
allow  the  colonies  to  check  or  discourage  in  any  degree  a 
traffic  so  beneficial  to  the  nation."  In  the  Declaration  of 
Independence,  as  written  by  Mr.  Jefferson,  (this  portion  was 
expunged  by  his  colleagues  on  the  committee,)  the  tirade 
against  King  George  III,  rises  in  virulence  on  the  topic  of  the 
slave  trade;  the  most  subdued  remark  being:  "  He  has  pros- 
tituted his  negative  for  suppressing  every  legislative  attempt 
to  prohibit  or  restrain  this  execrable  commerce."  At  the  date 
of  this  declaration,  slavery  prevailed  in  every  one  of  the 
colonies  which  thereby  became  independent  States. 

After  this  review  of  the  ante-revolutionary  course  of  adju- 
dication and  legislation  in  England,  it  may  be  fairly  con- 
cluded that  slavery  was  recognized  there  as  an  institution  of 
properly,  according  to  the  common  law,  especially  as  that 
law  was  applied  in  administering  the  affairs  of  the  colonies. 


472  APPEALS  IN  EaUlTY. 

Willis  vs.  JolliHe 

Indeed,  tliis  sort  of  property  was  recognized  in  the  English 
Courts  long  afterwards.  One  who  had  been  a  slave  in  the 
West  Indies,  who  continued  in  his  master's  service  in  Eng- 
land, was  held  not  entitled  to  recover  wages  on  any  implied 
promise,  3  Esp.  R.,  3;  see  also,  2  Hen.  Bla.,  511.  Lord 
Stowell,  2  Hagg.  A.  R.,  120,  cites  the  case  of  Williains  vs. 
Brown,  where  a  slave  fled  from  Grenada  to  England,  and 
there  entered  into  a  contract  with  the  captain  of  a  ship  bound 
to  Grenada,  to  serve  as  a  seaman  during  a  voyage  to  and  from 
the  West  Indies.  On  the  arrival  of  the  ship  at  Grenada,  the 
slave  was  discovered  and  reclaimed  by  his  master,  who  sub- 
sequently manumitted  him  for  a  price  paid  by  the  captain  ; 
whereupon,  the  freedman  contracted  to  serve  the  captain  for 
three  years.  On  their  return  to  England,  the  manumitted 
slave  sued  the  captain  for  his  wages  for  the  voyage,  and  it 
was  held  he  was  not  entitled  to  recover.  That,  although, 
according  to  Lord  x\lvanley's  phrase,  "  this  runaway  was  as 
free  as  any  of  us  in  England,"  on  reaching  her  territory, 
without  further  ceremony,  he  was  still  a  slave  in  Grenada, 
under  the  necessity  of  obtaining  manumission  there — that  he 
enjoyed  freedom  in  consequence  of  that  ceremony,  and  with- 
out it  must  have  remained  a  slave  in  Grenada.  Lord  Stowell 
says  :  "  I  have  heard  the  case  sometiujes  quoted  as  almost 
amounting  to  a  direct  recognition  of  the  freedom  of  the  slave, 
on  account  of  his  having  been  in  England,  when  nothing 
can  be  more  clear  than  that  it  is,  in  every  respect,  a  direct 
decision  to  the  contrary  of  the  four  Judges," — Alvanley, 
Heath,  Rook  and  Chambre.  See,  also.  The  Woodbridi^c,  1 
Hagg.,  71.  In  Madrozo  vs.  Willis,  3  Barn,  and  Aid.,  353,  in 
1820,  the  plaintiff,  a  subject  of  Spain,  sued  in  the  King's 
Bench  the  defendant,  a  captain  in  the  royal  navy,  alleging 
that  plaintiff's  brig,  lawfully  cleared  for  a  voyage  in  the  slave 
trade,  from  Ciiba  to  the  coast  of  Africa,  had  been  seized  off^ 
that  coast  with  force  and  arms  by  the  defendant,  together 
with  three  hundred  slaves,  and  other  goods  aboard,  which 
were  converted  to  defendant's  use,  and  the  plaintiff"  deprived 


APPEALS  IN  EaUITY.  473 

Columbia,  May,  1860. 

of  great  gains,  which  would  have  accrued  froui  taking  them 
to  Cuba.  The  only  question  on  circuit  was  as  to  the  amount 
of  damages:  and  Sir  C.  Abbott,  C.  J.,  afterwards  Lord  Tcn- 
terdeii,  doubting  whether  the  j)lainliff  was  entitled  to  recover, 
in  an  EngUsh  Court  of  Justice,  the  value  of  the  slaves, 
directed  the  jury  to  find  se|)arately  for  each  part  of  the 
damage;  and  the  jury  found  for  plainliff,  £3,000  for  the 
deterioration  of  the  ship's  stores  and  goods,  and  £  18,1 80  for 
the  supposed  profit  of  the  cargo  of  slaves.  On  a  motion  in 
Banc  for  a  rule  nisi,  to  reduce  the  damages  to  £3,000,  the 
whole  Court  refused  the  rule,  and  affirmed  the  right  of  a 
foreigner,  not  inhibited  by  the  laws  of  his  own  country  from 
carrying  on  the  slave  trade,  to  recover  in  a  British  Court  the 
value  of  his  slaves.  Sir  W.  D.  Best,  afterwards  Lord  Wyn- 
ford,  in  the  course  of  his  opinion,  cites  the  cases  of  the 
For/nna,  the  Donna  Marianna,  the  Diana,  in  tlic  Court  of 
Admiralty,  I  Dodson  A.  R.,  81,  01  and  95,  and  the  .'hncdie, 
before  the  Privy  Council,  1  Acton,  204,  (and  see  Le  Louis,  2 
Dod.,  236,)  as  establishing  that  the  subjects  of  countries 
which  permit  the  prosecution  of  this  trade,  cannot  be  legally 
interrupted  in  buying  slaves  in  Africa,  and  making  it  clear 
that  tlie  trade  is  not  condemned  by  the  general  law  of  nations. 
The  conclusion  expressly  drawn  by  Bayley,  J.,  is  inevitable, 
"that  he  (the  plaintiff)  had  a  legal  property  in  the  slaves." 
Reference  is  made  to  the  opini(Ui  of  Best,  .T.,  principally  for 
the  reason  that,  in  Forbes  vs.  Cochran,  2  Barn,  and  Cres.,448, 
he  indulges  in  a  rhaj)sody  obiter,  about  making  fast  the  bars 
of  the  prison  of  slaves,  and  riveting  well  their  chains  ;  "  for 
the  instant  they  have  broken  their  chains — they  have  es- 
caped from  their  prison — tliey  are  free."  The  judgment  in 
Forbes  vs.  Cochran,  1824,  although  not  approved  even  to  its 
regular  extent,  is  merely  that  the  owner,  a  British  subjftct 
reside!(t  in  Florida,  then  a  Spatiish  colony,  could  not  main- 
tain an  action  in  the  King's  Bench  against  British  admirals 
in  command  of  a  squadron  on  the  North  American  station, 
for  harboring  slaves  which   had  escaped   from   the  owner's 


474  APPEALS  IN  EQUITY. 

Willis  vs.  Jolliffe. 

plantation  near  the  river  St.  .John,  and  gone  on  board  a  man- 
of-war  belonging  to  tiie  squadron  ;  when  Sir  George  Cock- 
burn,  commanding  the  ship,  permitted  the  owner  to  use 
persuasion  to  the  slaves  to  return,  but  refused  to  employ 
force  for  this  end.  As  Holroyd,  J.,  expresses  the  principle, 
"  when  a  party  gets  out  of  the  territory  where  slavery  pre- 
vails, and  out  of  the  power  of  his  master,  and  gets  under  the 
protection  of  another  power,  without  any  wrongful  act  done 
by  the  party  giving  that  protection,  the  right  of  the  master, 
which  is  founded  on  the  municipal  law  of  the  particular 
place  only,  does  not  continue,  and  there  is  no  right  of  action 
against  a  party  who  merely  receives  the  slave  in  tliat  country 
without  doing  any  wrongful  act,"  In  1827,  twenty  years 
after  Great  Britain,  for  her  subjects,  had  abolished  the  slave 
trade,  the  case  of  the  slave  Grace — 2  Hagg.  Ad.  R.,  94 — was 
presented  for  judgment  to  Lord  Stowell,  one  of  the  most 
eminent  men  that  ever  adorned  the  bench,  for  genius,  schol- 
arship and  judicial  learning,  particularly  in  the  law  of 
nations.  Grace  was  a  slave  in  Antigua,  came  to  England  in 
the  service  of  her  mistress,  and  resided  there  for  some  time, 
and  then  went  back  to  Antigua.  In  her  suit  she  complained 
that,  being  a  free  subject  of  his  Majesty,  she  had  been  unlaw- 
fully exported  from  Great  Britain  to  Antigua,  and  there  kept 
as  a  slave.  Her  right  to  sue,  and  her  title  to  permanent  free- 
dom, depended  on  her  residence  in  England,  for  there  had 
been  no  formal  act  of  manumission,  although  the  learned 
judge  states  that  such  acts  are  commonly  executed  in  Eng- 
land. It  was  decided  that,  whatever  might  be  her  condition 
in  England  while  she  abided  there,  she  was  always  a  slave 
in  Antigua,  and  remitted  to  her  original  status  on  return 
to  the  domicil  of  her  mistress.  The  opinion  is  instructive 
throughout,  and  some  passages  will  be  quoted,  applicable  to 
this  case,  and  saving  labor.  "  Slavery  never  was  in  Antigua 
the  creature  of  law,  but  of  that  custom  which  operates  with 
the  force  of  law;  and  when  it  is  cried  out  malus  usus  ahol- 
endus  est,  it  is  first  to  be  proved  that,  even  in  the  considera- 


APPEALS  IN  EaUITY.  475 

Columbia,  May,  1S60. 

tion  of  England,  the  Mse  of  slavery  is  considered  as  a  inahis 
vsus  in  the  colonies.  Is  that  a  inalus  ksiis  which  the  Conrt 
of  the  King's  Privy  Council,  and  the  Courts  of  Chancery, 
are  every  day  carrying  into  full  effect  in  all  considerations  of 
property,  in  the  one  hy  appeal,  and  in  the  other  hy  original 
causes;  and  all  this  enjoined  and  confirmed  by  statutes? 
Still  less  is  it  to  be  considered  mains  iisus  in  the  colonies 
themselves,  where  it  has  been  incorporated  into  full  life  and 
establishment;  where  it  is  the  system  of  the  State,  and  of 
every  individual  in  it."  "Instead  of  being  condemned  as 
ma/us  tt.nis,  it  was  regarded  as  a  most  eminent  source  of  the 
nation's  riches  and  power.  It  was  at  a  late  period  of  the 
last  century,  (referring  to  the  Somerset  case,)  that  it  was  con- 
demned in  England  as  an  institution  not  fit  to  exist  ln^re,  for 
reasons  peculiar  to  our  own  condition  ;  but  it  has  been  con- 
tinned  in  our  colonies,  favored  and  supported  by  our  own 
Courts,  which  have  liberally  imparted  to  it  their  protection 
and  encouragement.  To  such  a  system,  while  it  is  sup- 
ported, I  rather  feel  it  too  strong  to  apply  the  maxim,  ?na/i(s 
usus  nholendus  est.''  This  was  said  some  six  years  before 
this  description  of  property  was  confiscated  in  the  colonies 
by  the  statute  3  and  4  William  IV,  c.  73.  "The  system  of 
slavery  in  our  West  India  colonies  was  perfect  in  every  part 
as  to  the  adequacy  d(  the  means  to  produce  the  intended 
effect,  and  not  to  be  thrown  out  of  use  because  it  was  in- 
capable of  being  used  in  the  full  extent  m  England.  With 
the  laws  of  the  colonies  it  could  be  conciliated,  and  there  it 
was  in  no  wise  deficient  in  compelling  the  obedience  of  its 
subjpcts  ;  whereas,  in  England  it  was  impotent,  and  the  law 
could  not  borrow  those  instruments  from  a  foreign  law  which 
were  necessary  to  make  the  system  work  properly.  This 
may  have  occasioned  one  great  difference  between  the  two 
systems.  The  fact  simply  is,  that  it  never  happened  that  the 
slavery  of  an  African,  returned  from  England,  has  been 
interrupted  in  the  colonies  in  conseqtjence  of  this  sort  of 
limited  liberation  conferred   upon   him   in  England.     There 


476  APPEALS  IN  EQUITY. 

Willis  vs.  Jollifle. 

lias  been  no  act  nor  ceremony  of  manumission,  nor  any  act 
whatever  that  conld  even  formally  destroy  those  various 
forms  of  property  which  the  owner  possessed  over  his  slave 
by  the  most  solemn  assurances  of  law,  such  as  pledging  him, 
or  selling  him  for  the  payment  of  the  owner's  debts,  or  mak- 
ing any  other  use  of  him  that  the  law  warranted.  Such 
rights  could  not  be  extinguished  by  mere  silence,  or  by  his 
country's  declining  to  act  in  such  a  conveyance.  Slaves 
have  come  into  this  island,  and  passed  out  of  it  in  returning 
to  the  colonies,  in  the  same  character  of  slaves,  whatever 
might  be  the  intermediate  character  which  they  possessed  in 
England  ;  and  this  without  any  interruption,  or  without  any 
doubt  belonging  to  their  character  in  that  servile  state." 
"Manumission  is  a  title  against  all  the  world.  Manumis- 
sions are  not  uncommon  in  England,  and  always  granted 
when  there  is  any  intention  of  giving  the  party  an  absolute 
title  to  freedom." 

Lord  Stowell  communicated  a  copy  of  this  opinion  to 
Judge  Story,  and  the  latter,  September  22,  1828,  wrote  in 
reply:  "If  I  had  been  called  upon  to  pronounce  a  judgment 
in  a  like  case,  I  should  certainly  have  arrived  at  the  same 
result,  though  I  might  not  have  been  able  to  present  the  rea- 
sons which  led  to  it  in  such  a  striking  and  convincing  man- 
ner. It  appears  to  me  that  the  opinion  is  impregnable.  In 
my  native  State,  Massachusetts,  the  state  of  slavery  is  not 
recognized  as  legal,  yet  if  a  slave  should  come  hither,  and 
afterwards  return  to  his  own  home,  we  should  certainly  think 
that  the  local  laws  would  re-attach  upon  him,  and  that  his 
servile  character  would  be  redintegrated.  I  have  reason  to 
know  that  your  judgment  has  been  extensively  read  in 
America,  (where  questions  of  this  nature  are  not  of  unfre- 
quent  discussion,)  and  I  never  have  heard  any  other  opinion 
but  that  of  approbation  of  it  expressed  among  the  profession 
of  the  law."  1  Stor.  Life,  &c.,  558.  The  doctrines  of  Lord 
Stowell  apply  with  peculiar  force  to  the  States  of  this  Union, 
having  common   origin,  history  and  general  interests,  con- 


APPEALS  IN  EQUITY.  477 

Columbia,  May,  18G0. 

staiitly  dealing  with  oacli  other  in  matters  of  business  and 
kindness,  and  confedi^rated  by  a  compact  which,  in  its  spirit 
at  least,  obliges  each  State  to  respect  the  pecnliar  condition 
and  rights  of  the  people  of  every  other  State.  That  comity 
which  between  distinct  nations  is  considered  a  part  of  the 
volnntary  law  of  nations,  is,  in  the  United  States,  in  many 
instances,  strict  duty  under  the  supreme  law. 

At  the  time  of  the  adoption  of  the  Federal  Constitution, 
slavery  was  maintained  in  all  the  States  of  the  Union  except 
Massachusetts,  although  incipient  measures  of  emancipation 
had  been  taken  in  Connecticut  and  New  Hampshire.  This 
instrument  of  government,  so  excellent  in  its  structure,  so 
much  perverted  and  misused  practically,  recognizes  and  en- 
deavors to  secure  the  right  of  property  in  all  citizens  owing 
obedience  to  its  prescripts.  The  preamble  of  the  Constitu- 
tion declares  one  great  object  of  the  peoples  of  the  States  in 
ordaining  the  Constitution,  to  be  to  establish  justice;  and  the 
Constitution  itself  provides  that  no  person  shall  be  deprived 
of  his  property  without  due  process  of  law;  that  private 
properly  shall  not  be  taketi  lor  public  use,  without  just  com- 
pensation;  that  the  people  shall  be  secure  in  their  eti'octs,  as 
well  as  persons,  against  jinrcasonable  searches  and  seizures, 
and  that  warrants  shall  exhibit  probable  cause,  supj»ortcd  by 
oath  or  atiirmation,  and  shall  particularly  describe  the  place 
to  be  searched,  and  the  persons  or  things  to  be  seized  ;  that 
no  State  shall  pass  any  law  impairing  the  obligation  ol  con- 
tracts; that  full  faith  and  credit  shall  be  given  in  each  State 
to  the  public  acts,  records  and  judicial  proceedings  of  every 
other  State;  that  the  citizens  of  each  State  shall  be  entitled 
to  all  the  privileges  and  immunities  of  citizens  in  the  several 
States;  that  the  powers  not  delegated  to  the  United  Stales  by 
the  Constitution,  nor  prohibited  by  it  to  the  States,  are  re- 
served to  the  States  respectively,  or  to  the  people;  that  the 
enumeration  in  the  Constitution  of  certain  rights,  shall  not 
be  constrtied  to  deny  or  disparage  others  retained  by  the 
people;  and  that  the  Constitution  shall  be  the  supreme  law 


478  APPEALS  IN  EQUITY. 

Willis  vs.  Jolliffe. 

of  the  land,  and  the  judges  in  every  State  shall  be  bound 
thereby,  anything  in  the  Constitution  or  laws  of  any  State  to 
the  contrary  notwithstanding.  Can  it  be  supposed  that  in  all 
these  safeguards  of  property,  that  species  of  it  which  was 
regarded  in  many  of  the  States  as  the  most  valuable  of  all 
personahy,  was  intended  to  be  excepted  or  ignored? 

The  three  provisions  of  the  Constitution,  which  have  most 
direct  reference  to  slaves  as  property,  remain  to  be  men- 
tioned. 1.  In  the  apportionment  of  representatives  and 
direct  taxes  among  the  several  States,  to  the  number  of  free 
persons,  including  those  bound  to  service  for  a  term  of  years, 
and  exchiding  Indians  not  taxed,  must  be  added  three-fifths 
of  all  other  persons.  Slaves  are  necessarily  meant  by  "other 
persons."  2  Sto.  Com.  Con.,  107-114.  In  ascertaining  the 
proportion  of  a  State  in  the  privilege  of  representation,  and 
the  burden  of  direct  taxation,  free  persons  of  color  are  reck- 
oned as  many  as  the  same  number  of  whites.  Ap|)rentices 
are  carefully  included  in  the  class  of  free  persons,  lest  the 
property  of  masters  in  them  for  a  term  of  years  should  be 
held  to  degrade  them  to  the  innominate  class,  fractionally 
represented  and  taxed,  where  the  right  to  service  is  perpetual. 
Slaves  are  certainly  enhanced  in  value  as  chattels,  in  the 
slaveholding  States,  by  the  fact,  that  they  constitute  the  only 
kind  of  property  that  enters  into  the  basis  of  federal  represen- 
tation ;  and  possibly  one  reason  why  their  immigration  to 
other  States  by  furtive  abduction  or  lawful  removal  is  toler- 
ated, may  be  that  there  they  count  in  representation  as  man 
and  man,  without  fractions.  Taxes,  as  a  word,  is  almost 
confined  in  meaning  to  imposts  on  property;  and  in  the 
imposition  of  direct  taxes  on  property  only,  our  brethren  of 
the  soi  disant  free  States  would  not  clamor  if  slaves  were 
included — and,  possibly  we,  not  they,  would  murmur  if  poll 
taxes  were  imposed  )n  them  as  persons.  2.  No  person  held 
to  service  or  labor  in  one  State,  under  the  laws  thereof, 
escaping  into  another,  shall,  in  consequence  of  any  law  or 
regulation  therein,  be  discharged  from  such  service  or  labor, 


APPEALS  IN  EaUITY.  479 

Columbia,  Mny,  18G0. 

but  shall  be  delivered  np  on  claim  of  the  party  to  whom 
such  service  or  labor  is  due.  However  much  this  clause  has 
been  evaded  and  obstructed  in  its  pro|)er  operation,  it  has 
never  been  disputed  that  its  princi[)al  application  is  to  slaves, 
although  others  held  to  service,  such  as  apprentices,  may  be 
embraced.  3  Sto.  Com.  Con.,  677.  And  any  reasonable  defi- 
nition of  property  must  include  an  owner's  title  to  the  servi- 
tude of  a  party  for  life,  and  the  servitude  of  his  issue  as  an 
incident.  The  6  article  of  the  ordinance  of  1787,  under 
which  the  opposition  to  involuntary  servitude  in  Ohio  origin- 
ated, and  the  Constitution  of  Ohio  itself,  admit  that  such 
servitude  may  be  imposed  on  a  party  after  conviction  in  ])uii- 
ishmcnt  of  crime.  This  article  contains  a  clause  for  the  ren- 
dition of  fugitives,  from  whom  labor  or  service  is  lawfully 
claimed  in  any  one  of  the  original  States.  3.  The  migration 
or  importation  of  such  persons  as  any  of  the  States  now 
existing  shall  think  proper  to  admit,  shall  not  be  prohibited 
by  the  Congress  prior  to  the  year  1S08,  but  a  tax  or  duty  may 
be  imposed  on  such  importation,  not  exceeding  ^10  for  each 
person.  No  amendment  of  the  Constittition,  which  may  be 
made  prior  to  the  year  180S,  shall  in  any  manner  affect  this 
clause.  3  Sto.  Com.  Con.,  202-4.  It  is  matter  of  history 
that  this  provision  was  introduced  into  the  Consiitution  in 
special  reference  to  the  slave  trade,  and  that  it  was  the  result 
of  a  compromise  of  conflicting  opinions;  some  of  the  States, 
for  example  South  Carolina,  being  opposed  to  all  jirohibition 
of  the  trade  by  Congress,  and  other  States  wishing  a  speedier 
extinction  of  the  trade.  The  words  of  the  clause,  interj)reted 
in  the  light  of  the  circumstances  surrounding  the  convention, 
plainly  denote  and  permit  the  importation  of  slaves  for  the 
next  twenty  years;  and  it  would  be  inexplicable  in  reference 
to  any  other  class,  why  the  privilege  of  importation  should 
be  confined  to  existing  States,  in  avoidance  of  conflict  with 
the  p<»licy  of  the  coternporaneous  ordinance:  and  to  such  of 
the  States  as  should  think  proper  to  admit  them,  implying 
contrariety  of  policy  among  the  Slates,  which  did  not  exist  as 


480  APPEALS  IN  EaUlTY. 

Willis  vs.  Jolliffe. 

to  any  other  class  of  immigrai!ts  besides  slaves;  and  why 
Congress  should  be  allowed  to  impose  a  tax  on  the  importa- 
tion, (carefnlly  limited  in  amount,)  whereas  immigration  in 
general,  so  far  from  being  taxed,  was  greatly  encouraged. 
Reference  has  been  made  already  to  Mr.  Jefferson's  anathema 
of  the  slave  trade,  in  the  original  draft  of  the  Declaration 
of  Independence;  yet  that  State  paper,  as  written  by  him, 
approved  by  the  committee,  and  adopted  by  Congress,  de- 
nounces George  III,  among  other  things,  for  refusing  to  pass 
laws  to  encourage  the  migration  of  foreigners  to  these  States. 
Congress  certainly  understood  this  clause  of  the  Constitution 
to  relate  to  the  importation  of  slaves,  for  it  passed  laws 
eagerly  in  advance,  to  go  into  effect  January  1,  1808,  to 
inhibit  this  trade.  It  may  be  remarked,  passingly,  that  this 
clause,  tlie  entire  scope  of  which  is  to  restrain  Congress  from 
adopting  a  particular  measure  before  a  fixed  time  in  future, 
altogether  negative  and  restrictive  in  its  character,  has  been 
perverted  by  construction  to  grant  the  power  to  Congress  to 
enact  the  measure  after  the  time  fixed.  Some  provisions  of 
the  Constitution,  in  execution  of  the  object  declared  in  the 
preamble,  "  to  insure  domestic  tranquility,"  may  refer  to 
slaves  strictly  in  the  aspect  of  human  agents,  as  the  power  of 
Congress  to  provide  for  calling  forth  tiie  militia  to  suppress 
insurrection,  and  the  guaranty  of  the  United  States  to  protect 
each  of  the  States,  on  proper  application  of  its  legislature  or 
executive,  against  domestic  violence;  but  these,  in  no  sense, 
contradict  or  impair  other  provisions  regarding  slaves  as 
property. 

It  is  quite  true  that  the  Constitution  does  not  at  all  employ 
the  word  slaves;  but  if  it  recognize  the  thing,  to  use  Swin- 
burn's  phrase,  "it  skilleth  not  of  the  name."  Its  redacteurs 
resort  to  euphemism,  and  in  deference  to  prejudice  and  fanat- 
icism, describe  slaves  as  persons  held  to  service,  and  other 
candied  words.  This  nicety,  however,  has  been  seized  as 
proof  that  its  framers  repudiated  property  in  slaves.  Thus, 
in  the  course  of  judgment  in  Poindexter^s  case,  it  is  said  : 


APPEALS  IN  EaUITY.  481 

Columbia,  May,  ISOO. 

"The  Coiislitiition  of  the  United  States  regards  and  acts 
upon  slaves  as  persons,  and  not  as  property,"  p.  665.  Let  ns 
look  somewhat  at  contrary  statements.  Governor  McDntfie 
uttered  the  sentiment,  that  slavery  is  the  corner-stone  of  onr 
republican  edifice,  and  Governor  Hammond,  in  his  letters  to 
Clark'son,  endorsed  it  without  reserve.  Jndge  Baldwin  has 
used  stronger  language.  In  Juhnson  vs.  Tompkins.,  I  Bald., 
597,  lie  says  :  "  Slavery  is  tlie  corner-stone  of  the  Constitution  ; 
the  foundations  of  the  government  are  laid  and  rest  on  the 
right  of  property  in  slaves,  and  the  whole  structure  must  fail 
by  disturbing  the  corner-stone."  In  Pri<rtr  vs.  Pennsylvania^ 
16  P(;t.,  539,  Judge  Story  says;  "  Historically  it  is  well  known 
that  the  object  of  this  clause  (for  rendition  of  fugitive  slaves) 
was  to  secure  to  the  citizens  of  the  slaveholding  States,  the 
complete  right  a)id  title  of  ownership  in  their  slaves  as  prop- 
erty, in  every  State  in  the  Union  into  which  they  might 
escape  from  the  State  where  they  were  held  in  servitiule.  Its 
true  design  was  to  guard  against  the  doctrines  and  principles 
prevalent  in  the  non-slaveholding  States,  by  preventing  them 
from  intermeddling  with,  or  obstructing,  or  abolishing,  the 
rights  of  the  owners  of  slaves."  Tilghman,  C.  J.,  in  ITright 
vs.  Deacon,  5  Serg.  &  Raw.,  63,  says:  "  Whatever  may  be  our 
opinion  on  the  subject  of  slavery,  it  is  well  known  that  our 
Southern  brethren  would  iu)t  have  consented  to  be  parties  to. 
a  Constitution,  under  which  the  United  Slates  have  enjoyed 
so  much  prosperity,  unless  their  property  in  slaves  had  been 
secured."  In  the  convention  of  New  York,  Alexander  Ham- 
ilton stated  that  the  Union  could  not  have  been  formed 
without  the  incorporation  of  the  guaranties  demanded  by  the 
South  on  the  subject  of  slave  properly.  Elliott's  Deb.,  212. 
See  also,  Madison  Pap.,  1006,  1389,  1392,  1396.  In  Dred 
Scott ^vs.  Sanc/forcf,  19  How.,  433,  411,  451,  the  Supreme 
Court  says:  "The  right  of  property  in  a  slave  is  distinctly 
and  expressly  affirmed  in  the  Constitution."  The  main  point 
of  decision  in  the  last  case  is,  that  a  negro  held  in  slavery  in 
Missouri  under  its  laws,  taken  by  his  uias.er  for  lemporary 
32 


482  APPEALS  IN  EaUITY. 

Willis  vs.  Jollifle. 

residence  into  a  State  where  slavery  is  prohibited  by  law, 
and  thence  into  a  territory,  acqnired  by  treaty,  where  slavery 
is  prohibited  by  an  Act  of  Congress  pronounced  to  be  uncon- 
stitutional, returning  with  his  master  and  resuming  his  resi- 
dence in  Missouri,  is  still  a  slave  in  conformity  to  the 
decisions  of  that  State.  Scoit  vs.  Emerson,  15  Mo.  R,,  576; 
Sylvia  vs.  Kb  by,  17  Id.,  454.  All  the  general  doctrines  on 
the  subject  are  discussed  with  great  ability  and  affluence  of 
learning. 

It  cannot  be  questioned,  after  this  decision,  that  if  Amy 
had  returned  to  South  Carolina  she  would  still  be  a  slave, 
notwithstanding  Ohio,  as  Lord  Stowell  says  of  England,  may 
condemn  slavery  for  reasons  peculiar  to  her  condition;  but 
she  has  not  returned,  and  tlie  question  recurs,  did  she  become 
free  by  mere  landing  on  the  northern  shore  of  the  Ohio 
river?  She  Avas  a  slave  when  she  lett  South  Carolina.  She 
continued  a  slave  throughout  her  journey  to  Ohio,  it  being 
through  a  slave  region  ;  she  was  not  manumitted  in  Ohio  by 
any  formal  act  of  her  master;  her  master  did  not  express  in 
any  form,  after  she  reached  Ohio,  liis  purpose,  transient  or 
settled,  to  make  her  free,  and  of  course  the  burden  of  proving 
her  freedom  is  upon  her  and  her  representatives.  If  she 
became  free  de  jure,  at  any  place,  by  any  act,  she  must  be 
adjudged  to  be  free  here;  for  although  a  free  negro  may  sub- 
ject himself  to  some  pain  and  disadvantage,  under  our  Act 
of  1S35,  by  voluntary  return  to  our  territory,  he  does  not  by 
any  Act  of  the  Legislature,  or  decision  of  the  Courts,  forfeit 
his  title  to  freedom.  Mere  immunity  from  capture,  or  casual 
and  temi)orary  security  in  a  place  of  refuge,  or  Iier  condition 
in  the  contemplation  of  Ohio,  imports  nothing.  "When  a 
strong  man  armed  keepelh  his  palace,  his  goods  are  in  peace; 
ibut  when  a  stronger  than  he  shall  come  upon  him  and»over- 
■  come  him,  he  taketh  from  him  all  his  armor  wherein  he 
trusted,  and  divideth  his  spoils.''  A  pirate  on  board  of  his 
ship  at  sea,  is  free  in  some  sense,  so  long  as  he  is  unassailed 
by  any  force  sufficient  for  his  capture.     A    murderer  who 


APPEALS  IN  EaUITY.  4S} 

Columbia.  May,  ISGO. 

fleos  iho  State  and  secretes  himself  abroad,  is  not  for  tlie  time 
liable  to  arrest,  but  he  is  still  a  criminal.  Formerly,  even  in 
onr  fatherland,  one  who  took  refuge  in  a  sanctuary  was  pro- 
tected from  arrest  while  there,  but  he  was  not  thereby  acquit- 
ted or  pardoned  of  charges  against  him,  and  he  continued  in 
his  previous  condition.  The  question  is  not  whether  Amy 
is  sate  from  seizure  at  a  particular  place,  but  whether  she  is 
rightfully  free  ubiqiie.  It  is  not  whether  the  remedy  of  her 
master  is  suspended,  and  his  right  for  the  time  locally 
obstructed  in  enforcement,  but  whether  his  right  is  extinct 
and  ended.  Now,  if  Amy  would  be  a  slave  on  return  to  this 
State,  (and  Judge  Story,  C,  J.  Shaw  and  the  Supreme  Court 
concur  in  that  dogma,)  the  conclusion  can  follow  logically 
and  legitimately,  only  from  the  proposition  that  she  was 
always  a  slave  here,  whatever  may  have  been  her  practical 
liberty  of  action  abroad.  The  notion  of  C.  J.  Shaw,  in  Com- 
monivcaUh  vs.  ,ives,  18  Pick.,  19.3,  that  if  a  slave  waives  the 
protection  of  the  laws  of  Massachusetts,  and  returns  to  the 
State  where  he  is  held  as  a  slave,  his  condition  is  not  changed, 
is  altogether  untenable,  for  there  can  be  no  waiver  in  such 
case.  As  a  slave  he  can  make  no  contract,  nor  exercise  any 
choice  of  domicil,  nor  even  bargain  for  his  freedom.  In 
JVillis  vs.  Bruce,  S  B.  Mon.,  54S,  it  was  held  that  the  promise 
or  executory  contract  of  a  master  to  and  with  his  slave  to 
emancipate  the  slave,  could  not  be  enforced  at  law  nor  in 
equity;  and  our  cases  o{  Fable  vs.  Brown,  2  Ilill  C,  37S,  and 
Skrine  vs.  Wa/ker,  3  Rich.  E.,  2G3,  recognize  the  invalidity 
of  an  executory  contract  made  by  or  with  a  slave.  Asa 
freeman,  he  could  not  assume,  nor  as  a  freedman  resume 
the  condition  of  slavery,  unless  perhaps  as  he  might  be 
authorizi'd  to  do  so  by  some  special  law  of  the  State  to 
which  he  returned.  There  is  a  law  in  V'irginia  which 
enables  a  free  person  of  color,  when  his  choice  is  judicially 
ascertained,  to  become  a  slave  and  claim  the  protection  of  his 
chosen  master.  There  is  no  statute,  nor  judgment,  nor  cus- 
tom  to   this    effect    in    South    Carolina.     A    slave  returning 


484  APPEALS  IN  EQUITY. 

Willis  vs.  Jollitle. 

hither  from  a  non-slaveholding  State  would  be  adjudged  a 
slave,  yet  for  the  reason  that  he  was  never  otherwise  than  a 
slave. 

In  this  case  of  ^ves,  a  slave  was  voluntarily  brought  by 
his  master  from   Louisiana  to  Massachusetts,   on  a  visit  of 
fowr  or  five  months,  and  it  was   ruled   that  the  slave  was  so 
far  free  that  he  could   not  be  comfielled,  against  his  will,  to 
return  to  New  Orleans,  and  tliat  the  master  was  not  entitled 
to  remedy  under  the  stipulation  in  the  Constitution  for  the 
rendition  of  fugitives.       The    cases    of    an    owner    passing 
through  Massachusetts  with   his  slave  from  one  slaveholding 
State  to  another,  and  of  an  owner  with  his  slaves  landing  in 
Massachusetts   by   accident  or  necessity,  and  remaining  no 
longer  than   necessary,  are  specially  reserved   from   opinion. 
So  far  as  the  judgment  proceeds  on   the  construction  of  the 
clause  in    the    Constitution    for    rendition    of  fugitives,  it  is 
certainly  justified  l)y  the  words,  if  not  the  spirit,  of  the  clause, 
and  seems  to  be  supported   by    the   previous  cases  of  Butler 
vs.  Hooper,  1   Wash.  C.   C.  R.,  699;  Ex  parte.  Simmons,  4 
Wash.  C.  C.  R-,  396,  and  others  before  and  since.     In  strict- 
ness, a  slave  voluntarily  and  unnecessarily  taken  by  his  mas- 
ter into  a  non-slaveholding  State  and  detained  there,  is  not  in 
the  category  of  a  slave  escaping  from  the  State  where  he  is 
held  to  service.     It  is  not  clear  that  any  point  besides  this 
was  adjudged  in  the  case,  although  there  are  dicta   in  the 
learned  and  elaborate  opinion  for  and  against  the  views  com- 
monly entertained  by  the  tribunals  of  the  slaveholding  States. 
The  C.  J.  approves  the  remark  of  Holroyd,  J.,  in  Forbes  vs. 
Cochran,  svpra,  in  speaking  of  the  etiect  of  bringing  a  slave 
into  England,  that  "he  ceases  to  be  a  slave  in  England,  only 
because  there   is    no    law  which   sanctions  his  detention  in 
slavery,"  and  expresses  himself  as  to  persons  coming  within 
the    limits  of  Massachusetts:  "•  if  such    persons    have    been 
slaves,  they  become  free,  not  so  much  because  any  alteration 
is   made  in   their  status  or  condition,  as  because  there  is  no 
law  wliich  will  warrant,  but  there  are  laws,  if  they  choose  to 


APPEALS  L\  EaUITY.  485 

Coliiinhia.  May.  ISOO. 

avail  themselves  of  them,  which  prohibit  their  forcible  deten- 
tion or  forcible  removal ;"  and  tiiat  it  follows  from  this  prin- 
ciple, that  if  they  waive  the  protection  of  these  laws,  and 
return  to  the  place  where  they  are  slaves,  their  condition  is 
not  changed.  C.  J.  Shaw  admits  that  slavery  is  not  contrary 
to  the  law  of  nations,  and  that  the  Courts  of  Massachusetts 
cannot  pronounce  void,  upon  their  notions  of  morality  and 
policy,  an  Act  in  respect  to  slavery,  done  within  a  Slate  where 
slavery  exists,  if  the  sovereign  power  of  the  place  pronounce 
the  Act  lawful  ;  and  byway  of  instance,  mentions  that  a  suit 
might  be  maintained  in  Massachusetts  on  a  note  given  in  New 
Orleans  for  the  price  of  a  slave,  and  that  the  consideration 
would  not  be  invalid.  Judge  Story  quotes  this  opinion  in 
full,  n.  3,  sec.  96,  Conf  L.,  but  at  sec.  259,  n.  2,  questions  the 
law  of  the  instance  put.  .Ives'  case,  as  to  the  effect  of  the 
voluntary  introduction  of  slaves  into  a  non-slaveholding 
State,  was  followed  in  Nat/hr^s  case,  3  Mete,  72,  in  Jackson 
vs.  Bullock,  12  Conn.  R,,  3S,  and  in  other  cases. 

It  is  not  gainsayed  that  if  a  master  take  his  slaves  from 
South  Carolina  to  Ohio,  and  e^tal)lish  his  domicil  there,  the 
slaves  are  free  by  our  law.  To  this  effect  is  tlie  decision  of 
Guillemctle  vs.  Harper,  4  Rich.  L.,  186;  and  so  also  are  the 
cases  Rankin  vs.  Ly(lia,2  A.  R.  Marsh.,  46S;  Dnnsford  vs. 
Cocjuillon,  14  Marl.,  401,  and  other  Louisiana  cases.  When 
the  new  domicil  has  been  acquired,  wliich  may  be  after  very 
brief  residence,  wliere  the  animus  manendi  et  factum  concur, 
1  Bin.  349,  the  locus penilentix  is  gone,  and  the  master  cannot 
redintegrate  his  former  slaves  to  their  servile  state  by  resum- 
ing his  original  domicil  and  carrying  them  with  him.  Nor 
is  it  necessary  to  contest  in  this  case,  although  it  is  not  per- 
ceived how  this  can  be  effected  without  fraudulent  evasion 
of  oiir  Act  of  1841  and  State  policy,  that  if  a  master  send 
his  slave  to  a  non-slaveholding  Stale  for  permanent  resi- 
dence, this  fact  may  be  equivalent,  quoad  the  slave,  to  the 
master's  change  of  domicil,  and  enable  the  slave  to  acquire  a 
separate    domicil,    from    the   dissolution    of  the    relation    of 


486  APPEALS  IN  EQUITY. 


Willis  vs.  Jolliffe. 


master  and  slave,  of  protection  and  obedience.  Tliis  lias 
been  held  in  some  of  the  slaveholding  States  which  have  no 
such  enactment  as  the  Act  of  1S41,  as  in  Bland  vs.  Duwllng, 
9  Gill  and  J.  Md.  R.,  19;  Louifs  vs.  Cabarinis,  7  La.  R.,  170; 
9  La.  R.,473;  11  La.  R.,499;  13  La.  R.,  341  ;  Ross  vs.  Dun- 
can, 1  Free.  Mississippi  C.  R.,  5S7,  and  in  this  State,  before 
1841,  in  Frazier  vs.  Frazier,  2  Hill  C,  304.  Bnt  see  Hinds 
vs.  Brazeale,  supra.  Nor  is  it  intended  to  dispute  the  opin- 
ion, not  judgment,  of  Taney,  C.  J.,  in  Groves  vs.  Slaughter, 
15  Pet.,  449,  14  Curt.,  148,  that  "  the  power  over  this  subject 
(slavery)  is  exclusively  with  the  several  States,  and  each  of 
them  has  a  right  to  decide  for  itself  whether  it  will  or  will 
not  allow  persons  of  this  descri|)tion  to  be  brouglit  witliin  its 
limits  from  another  State,  either  for  sale  or  for  any  other 
purpose,  and  also  to  prescribe  the  manner  and  mode  in 
which  they  may  be  introduced,  and  to  determine  their  con- 
dition within  their  respective  territories;  and  the  action  of 
the  several  States  upon  this  subject  cannot  be  controlled  by 
Congress,  either  by  virtue  of  its  power  to  regulate  commerce, 
or  any  other  power  conferred  by  the  Constitution  of  the 
United  States."  Slaves  are  undoubtedly  persons,  though 
they  be  chattels,  and  Ohio,  for  her  people,  may  regulate  or 
prohibit  their  importation  or  migration,  and  determine  their 
status  within  her  borders;  as  South  Carolina  may  take  the 
same  course  in  respect  to  them  or  to  free  persons  of  color. 
It  is  a  matter  of  internal  police,  not  of  trade.  But  neither 
State  can  control  the  other  within  the  limits  of  the  latter, 
nor  fix  the  absolute  status  of  such  a  party  in  variance  with 
the  law  of  the  domicil.  It  would  be  in  violation  of  the 
power  of  Congress  to  regulate  commerce  among  the  several 
States,  for  Ohio  to  inhibit  by  statute  the  introduction  of 
cotton  from  Georgia,  iron  from  Pennsylvania,  or  manufac- 
tures from  Massachusetts;  yet,  as  to  mere  commodities, 
especially  if  Congress  has  made  no  regulation,  she  may 
lawfully  pass  health  laws,  inspection  laws,  and  laws  regulat- 
ing  ferries,   &c.     9    Wheat.   R.,   203,  209;   2    Pet.   R.,    245. 


APPEALS  IN  EaUITY.  487 

Columbia,  May,  l&tSO. 

Slaves  are  not  mere  commodities.  But  if  the  power  of 
Congress  over  commerce  were  not  held  to  be  exclusive,  Ohio 
would  have  the  same  right  to  exclude  or  admit  on  terms,  a 
negro  as  a  cliattel,  that  Lapland  would  have  concerning  a 
camel,  or  Oman  concerning  a  reindeer,  ''  for  reasons  peculiar 
to  her  condition."  It  is  not  consistent  with  that  comity 
which  obtains  even  among  distinct  and  distant  nations,  that 
inasmuch  as  the  Southern  States  have  granted  prodigally  to 
the  common  government  the  control  of  commerce,  the  co- 
States  should  determine  for  South  Carolina  and  the  rest,  that 
a  sentient  and  intelligent  thing  shall  not  be  deemed  a  chattel 
in  the  South,  because  it  is  likewise  a  person.  The  stipula- 
tion that  the  citizen  of  one  Slate  shall  have  all  liis  privileges 
in  all  the  States,  has  lost  its  savor  and  its  vigor. 

Conceding,  then,  all  these  doctrines,  however  disputable, 
and  that  as  their  result,  a  slave  becomes  free  on  touching  the 
territory  of  a  non-slaveholdiug  State  to  which  the  master  has 
changed  his  domicil,  it  is  utterly  denied  that  freedom  to  the 
slave  results  from  the  transit  of  the  master  and  slave  over  the 
territory  of  a  nou-slaveholding  State,  or  the  sojourn  of  the 
master  with  the  slave  within  its  limits,  for  a  reasonable  time, 
anirno  revertendi.  Any  State  may  properly  guard  against 
the  abuse  of  its  hospitality  by  unacceptable  visitors,  who, 
under  the  pretence  of  temporary  residence,  avail  themselves 
too  long  of  the  protection  of  the  local  sovereignty;  and 
exemption  from  the  loss  of  domicil  and  its  incidental  rights, 
is  affirmed  to  continue  only  for  a  reasonable  time,  to  be 
ascertained  l)y  the  circumstances  of  every  particular  case. 
Necessarily  there  is  some  indcfinifeness  in  the  application  of 
reasonable  time  to  sojiuirn  ;  but  no  more  than  there  is  when 
it  is  applied  to  required  notice,  and  in  many  other  instances 
in  the  common  law.  At  the  time  when  the  Constitution  of 
the  United  States  was  adopted,  this  right  of  transit  and  tem- 
porary residence  of  the  citizen  of  one  Slate  with  his  properly 
througiiout  the  States,  was  the  customary  law  of  the  States; 
and  the  Conslilutiun,  so  far  from  abolishing  or  abridging  this 


488  APPEALS  IN  EaUITY. 

Willis  w.  JollifTe. 

right,  expressly  provided  that  the  privileges  of  a  citizen  in 
one  State  shonld  be  co-extensive  with  the  Union,  and  that 
fngitive  slaves,  wherever  they  might  be  throughout  the  Con- 
federacy, should  be  restored  on  proper  claim.  Judge  Kane 
said,  in  the  JVheeler  case,  "  I  know  of  no  statute  of  Pennsyl- 
vania which  affects  to  divest  the  rights  of  property  of  a 
citizen  of  North  Carolina,  acquired'  and  asserted  under  the 
laws  of  North  ('arolina,  because  he  has  found  it  needful  or 
convenient  to  pass  through  the  territory  of  Pennsylvania; 
and  if  such  a  statute  can  be  found,  I  am  not  aware  that  it 
can  be  recognized  as  valid  in  a  Court  of  the  United  States." 
Bartley,  C.  J.,  says  in  the  Poindexter  case:  "Until  recently, 
the  right  of  transit  of  a  master  with  his  slave,  in  travelling 
through  Ohio,  was  not  questioned.  In  the  intercourse  of  the 
people  of  Ohio  with  the  people  of  Kentucky  and  Virginia, 
since  the  organization  of  the  State  government,  it  has  been  a 
very  common  occurrence  for  a  slave  to  be  sent  into  this  State 
on  an  errand,  or  to  pass  through  the  State  on  a  journey  with 
his  master;  and  the  acquiescence  in  tllis  common  practice 
most  manifestly  negatives  the  prevalence  of  any  such  well- 
settled  and  well-known  rule  in  Ohio  as  that  mentioned:" 
namely,  touch  and  be  free,  without  exception  as  to  sojourners 
and  travellers.  This  case  o(  Poindexter  was  the  first  in  Ohio 
that  rejected  the  exception;  and  there  the  ruling  was  not 
indispensable  to  the  same  result  of  the  cause.  In  Illinois, 
where  the  Constitution  prohibits  slavery,  it  was  held  by  the 
Supreme  Court,  in  fVillard  vs.  the  People,  A  Scam.,  461,  that 
a  slave  does  not  become  free  by  going  into  the  State  for  the 
purpose  of  passing  through  it,  and  that  such  entrance  is  not 
the  introduction  of  slavery  into  the  State.  In  the  slavehold- 
ing  States  coterminous  with  Ohio,  the  course  of  decision  has 
been  uniform.  In  Marlowe  vs.  Kirby,  12  B.  Mon.,  512,  it 
was  held  tiiat,  though  a  State  might  have  the  right  to  declare 
the  condition  of  every  person  within  her  limits,  the  right 
only  exists  while  that  person  remains  there.  She  has  not  tlie 
power  of  giving  a  condition  or  status  to  a  person  temporarily. 


APPEALS  IN  EaUITY.  489 

Columbia,  May,  1S60. 

within  her  limits,  wliicli  will  adhere  to  tlio  p(>rsoii  every- 
where; but  on  the  return  of  tiie  person  to  the  place  of  his 
domicil,  he  will  occupy  liis  former  position  ;  if  a  slave,  that 
of  a  slave.  And  that  in  case  of  the  removal  of  a  slave  into 
Ohio  temporarily,  who  returns  with  or  to  his  owner  of  Ken- 
tui'ky,  the  effect  upon  the  sfatns  of  the  slave  is  to  he  deter- 
mined by  the  law  of  the  latter  State,  atid  not  that  of  the 
State  where  the  slave  had  been.  To  the  same  effect  are 
Strader  vs.  Graham,  supra ;  Collins  vs.  »,^f7ierica,  9  H.  INIon., 
565.  14  lb.,  358.  In  Lewis  vs.  Fullerlon,  I  Rand.  Va.,  15, 
it  was  held  that  a  slave  going  from  Virginia  to  Ohio,  with  the 
consent  of  his  master,  for  a  temporary  purpose,  animn  rcver- 
tendi,  does  not  thereby  acquire  title  to  freedom  in  Virginia, 
although  by  judgtnent  in  Ohio  on  habeas  corpus,  such  right 
in  the  slave  had  been  declared.  The  case  of  Dred  Scott 
which,  however  contemned  in  Ohio,  is  law  here,  maintains 
the  same  general  doctrine. 

It  is  argued  for  the  executor  that,  conceding  the  soundness 
of  this  doctrine  in  tfie  main,  it  is  inapplicable  to  this  case, 
which  is  within  an  exception  to  the  rule,  because  before  the 
slaves  reached  Ohio,  their  master  had  repeatedly  announced 
his  settled  intention  to  emancipate  them,  as  his  motive  for 
conducting  them  thither.  This  is  really  the  special  and  dis- 
tinguishing point  of  this  case;  and  it  has  been  carefully  and 
deliberately  considered. 

Intention  is  defined  by  Webster,  the  fixed  direction  of  the 
mind  to  a  particular  object,  or  a  determination  to  act  in  a 
particular  manner;  and  it  is  distinguishable  from  motive, 
that  which  incites  or  stimulates  to  action,  and  from  attempt, 
which  is  an  inchoate  elTort  towards  action.  In  legal  contem- 
plation, intention  means  the  purpose  or  design  with  which 
a  wilful  act  is  done,  characterizing  the  act;  yet  it  is  properly 
inferred,  that  one  who  does  an  act  wilfully  intends  the  natu- 
ral and  proximate  consequences  of  the  act,  although  unfore- 
seen. An  attempt  to  commit  a  crime  is  in  matiy  cases  of 
iisclf  a  misdemeanor,  and  in  treason  it  has  been  held,  that  a 


490  APPEALS  IN  EQUITY. 

Willis  v.1.  JoUiffe. 

mere  imagination  of  the  heart,  evinced  by  some  overt  act 
towards  effectuating  it,  is  equally  culpable  and  punishable  as 
if  carried  into  execution  ;  but  a  bare  criminal  intent,  ex- 
pressed in  words,  gestures  or  otherwise,  without  further  pro- 
ceeding to  the  crime  contemplated,  is  not  punishable.  The 
same  principle  is  applicable  to  contracts,  and  all  dealings 
cognizable  in  Courts.  Intention  alone  is  utterly  insufficient 
and  inadequate.  14  Jno.,  324;  19  Jno.,  53.  An  intention 
to  give,  sell,  or  manumit,  is  not  a  gift,  sale,  or  manumission. 
Every  intention  or  purpose  is  revocable.  A  formal  distinc- 
tion is  sometimes  made  between  a  transient  purpose  and  a 
fixed  purpose,  and  such  epithets  serve  well  enough  to  indi- 
cate the  comparative  feebleness  and  strength  of  the  determi- 
nation for  the  time  being  to  do  the  thing,  but  they  lead  to 
confusion  if  employed  or  understood  to  intimate  a  difference 
in  the  nature  of  purpose.  In  strict  propriety  of  speech,  no 
bare  intention  is  fixed,  in  the  sense  of  being  unalterable.  It 
must  be  either  abandoned  or  executed,  and  in  both  cases 
ceases  to  be  intention.  In  the  present  case,  the  general 
intent  of  the  testator  to  take  Amy  and  her  children  to  Ohio 
and  emancipate  them,  was  repeatedly  expressed,  but  he  said 
nothing  as  to  the  time  and  mode  of  emancipation.  He  never 
intimated  the  purpose  of  setting  them  free  by  the  mode  of 
visiting  with  them  the  land  of  Ohio,  and  there  is  no  proof  of 
any  act  or  speech  towards  emancipation,  not  even  of  the 
continuance  of  his  general  intent,  after  his  arrival  there; 
indeed,  he  died  almost  instantly  after  leaving  the  steamboat 
Strader.  It  is  quite  consistent  with  all  his  declarations 
proved,  that  it  was  his  purpose  to  emancipate  these  slaves,  by 
formal  deed,  months  after  his  arrival  there,  provided,  after 
examination  of  all  the  circumstances,  he  remained  of  the 
same  mind. 

The  question  is  as  to  his  purpose  after  he  reached  Ohio, 
not  before.  The  condition  of  adhering  to  it,  or  the  right  to 
retract  it,  applies  as  well  to  a  purpose  of  emancipation,  as  to 
any  other  purpose;  and  adherence  to  it  can  be  demonstrated 
only  by  some  sufficient  and   irrevocable  act.     On   a  former 


APPEALS  IN  EaUITY.  491 

Columhia,  May,  1860. 

occasion,  when  he  visited  Maryland  with  the  same  view, 
"Willis  did  retract,  and  the  locus  penitentias  still  abided  in 
him  when  he  touched  Ohio.  By  our  law  emancipation  can 
be  accomplished  only  by  the  legislature,  and  the  master  has 
no  power  by  any  act  of  his  within  the  limits  of  the  State,  to 
achieve  such  j)urpose;  and,  surely,  when  it  is  asserted  that  a 
master  has  emancipated  his  slaves  by  something  done  abroad. 
Courts  of  the  State  should  be  fully  satisfied  of  the  complete- 
ness of  the  foreign  emancipation.  A  will  for  most  purposes 
speaks  at  the  testator's  death,  or  as  it  has  been  quaintly 
expressed,  "utters  his  last  words."  1  Ves.  Sr.,  53.  In  the 
present  instance,  the  testator  directs  his  executors  to  emanci- 
pate Amy  and  her  children,  and  tiie  acting  executor  pursued 
the  direction,  and  delivered  to  them  formal  deeds.  In  Simon- 
ton  vs.  TVigg,  Charleston,  January,  185S,  where  certain  slaves 
were  sent  by  their  master  from  South  Carolina  to  Cuba,  a 
slaveholding  country,  for  the  purpose  of  making  them  {ree, 
it  was  adjudged  by  the  law  Court  that  they  were  not  free. 
In  Cross  vs.  Black,  9  Gill  and  J.,  19S,  a  master  started  with 
his  slaves  to  a  non-slaveholding  State  for  the  jjurpose  of  set- 
ting them  free,  but  changed  his  mind  before  reaching  his 
destination.  Held,  that  this  was  not  emancipation,  as  there 
was  no  consummation  of  iiis  purjiose. 

It  is  adjudged  that  Amy  and  her  ch'ldren  were  not  free 
persons  at  the  death  of  testator,  and  consequently  that  the 
bequests  for  their  benefit  are  void  by  4  sec.  A.  A.  1841. 

Since  Morris  vs.  Bishop  of  Durham,  9  Ves.,  399,  10  Ves., 
522,  it  has  been  the  rule,  that  when  a  trust  has  been  imposed, 
and  no  beneficial  ititerest  is  designed  for  the  trustee,  if  the 
trust  fail  for  any  cause,  the  trustee  shall  not  hold  for  his  own 
benefit,  and  a  trust  results  to  the  grantor  or  his  next  of  kin. 
In  Johnson  vs.  Clarkson,  3  Rich.  E.,  305,  a  testator  gave  his 
estate  to  his  executor  on  trusts  or  conditions  for  the  benefit 
of  his  slaves,  which  trusts  were  void  by  the  Act  of  lS41,and 
it  was  held,  that  no  beneficial  interest  was  given  to  the  exec- 
utor, and  that  a  trust  resulted  to  the  next  of  kin  of  testator. 
^ibercrombie   vs.   Id.,  Ala.   R.,  489;  3   Alk.,  72.      It  follows 


492  APPEALS  IN  EaUlTY. 


Willis  vs.  JollifTe. 


that  the  next  of  kin  of  Elijah  Willis  are  entitled  to  the  estate 
given  ineffectually  by  his  will,  for  the  benefit  of  his  slaves 
Amy  and  her  children. 

No  issue  is  made  by  the  pleadings  as  to  the  liability  of  the 
executor,  regularly  a  party,  for  the  value  of  the  negroes  in 
Ohio,  and  the  question  has  not  been  considered. 

It  is  ordered,  that  a  writ  of  partition  be  issued  under  the 
direction  of  the  commissioner,  to  divide  the  lands  and  slaves 
of  the  testator  among  his  distributees,  in  the  proportions 
prescribed  by  the  Act  for  distributing  the  estates  of  intestates. 

It  is  further  ordered,  that  the  parties  to  the  cause  have  leave 
to  apply  at  the  foot  of  this  decree  for  such  further  directions 
and  orders  as  they  may  deem  expedient. 

Extracts  from  the   testimony  read  on   the  hearing   of  the 
cause,  at  Barnwell,  February  Term,  1S5S. 

I.     CERTIFICATE    OF    CHAUACTER. 

South  Carolina — Barnwell  District : 

This  is  to  certify  to  all  whom  it  may  concern,  that  we  are 
well  acquainted  with  Mr.  Elijah  Willis,  of  the  District  and 
State  aforesaid,  and  that  he  is  a  gentleman  of  unimpeached 
cliaracter  and  standing.  He  has  stated  to  us  his  intention  of 
taking  on  a  lot  of  negroes  to  Maryland,  with  a  view  to  put- 
ting them  at  trades  in  that  State,  and  has  desired  of  us  this 
certificate,  which  we  cheerfully  give. 

(Signed)     JOHNSON    HAGOOD,  Com.  in  Equity, 

Barnwell  Dist. 

ANGUS    PATTERSON. 

R.  C.  FOWKE,  Ordinary,  Barnwell  District. 

V.  J.  WILLIAMSON. 

J.   L.    DAVIS,  Clerk  of  Court. 

WM.  R.  HALFORD,  Sheriff  Barnwell  District. 

L.  O'BANNON,  Magistrate. 

J.  J.  RYAN. 

A.  P.  ALDRICH. 

H.  D.  DUNCAN. 

F.  F.  DUNBAR. 

GEORGE  W.  MOYE. 
8th  June,  1852. 


APPEALS  IN  EaUITY.  493 

Columbia,  May,  li>60. 
IT.    ADMISSION    OF    COUNSEL. 

It  is  admitted  that  Amy  and  her  children  are  now  residing 
in  Oliio,  in  the  enjoymcMit  of  whatever  rights  they  acqnired 
by  Ix'ing  carried  there,  or  nnder  the  deeds  execnt<>d  by  John 
JolHffe  for  their  emancipation.  It  is  also  admitted,  that 
Wilhs  carried  the  above  persons,  in  1S52  or  '.53,  to  the  City 
of  Baltimore,  and  bronght  them  back  to  Barnwell  after  a  few 
months.  Also,  that  there  is  no  person  in  Ohio  claiming 
them  as  slaves. 

ALDRICH  &  OWENS. 
BELLINGER  &  BAUSKETT. 

4th  February,  1858. 

Jouafhan  Pender,  of  Barnw(^ll  district,  sworn. — Witness 
knew  Elijah  Willis  for  thirty-five  or  forty  years  before  liis 
death,  during  which  time  he  lived  within  thirteen  or  four- 
teen miles  of  the  said  Willis.  Witness  and  he  were  always 
friendly,  and  he  often  stopped  at  witness'  liouse.  He  had 
lent  witness  money  once  or  twice  in  his  lif(\  Witness 
traded  at  Williston,  and  was  frequenily  tliere,  where  he  met 
Elijah  Willis.  Williston  was  E.  Willis'  P.  0.,  the  place 
where  ho  did  his  country  trading.  E.  Willis  had  no  lawful 
wife  or  child;  was  an  industrious,  money-making  man. 
Witness  had  been  at  E.  Willis'  house  as  often  as  five  or  six 
times  in  his  life.  On  one  occasion  he  saw  a  negro  woman 
named  Amy,  whom  Wm.  Kirkland  had  owned,  and  some 
three  or  four  mulatto  children.  This  is  the  woman  whom 
Willis  was  said  to  keep  as  a  mistress,  and  these  were  the 
children  said  to  be  the  offspring  of  the  conneciion.  It  was 
so  generally  reported  and  believed  in  the  neighborhood,  and 
there  was  a  great  deal  in  Willis'  own  behavior  to  confirm 
the  belief.  On  the  occasion  alluded  to,  witness  saw  him 
with  one  of  the  children  in  his  lap;  witness  to(»k  dinner 
there  that  day,  and  thought  Willis,  during  the  meal,  in 
giving   them  the  best  victuals  from  the  table,  and  in  other 


494  APPEALS  IN  EaUITY. 


Willis  vs.  JoliifTe. 


ways,  treated  them  as  his  own  children;  it  was  then  that 
one  of  the  small  ones  got  in  his  lap.  Witness  had  heard  of 
Willis'  connection  with  Amy  several  years  before  the  day  he 
was  at  Willis'.  He  had  seen  Amy  trading  largely,  and  as 
freely  as  a  white  woman,  at  Williston,  at  James  Willis'  store. 
James  was  a  nephew  of  Elijah  W^illis,  and  would  make 
much  of  Amy,  in  order  to  induce  her  to  take  up  goods, 
calling  her  Aunt  Amy,  and  saying  to  witness,  with  a  wink, 
"now  T  am  going  to  make  a  big  bill.''  Elijah  Willis'  rela- 
tions lived  in  the  Williston  neighborhood,  and  around  E. 
Willis'.  I  saw  Amy  at  James  Willis'  store  making  pur- 
chases, on  one  occasion,  when  James  Willis  told  me  she  had 
ridden  there  in  his  uncle  Elijah's  carriage.  Something  like 
four  years  ago,  in  the  court  house  square,  at  Barnwell,  on  a 
sale  day,  Willis  said  to  witness,  ''I  have  travelled  a  great 
deal  and  spent  a  heap  of  money  to  fix  my  business."  He 
then  asked  me,  particularly,  "if  I  knew  any  one  who  would 
buy  out  his  possessions  in  Barnwell — lands,  negroes,  stock, 
and  everything  else;  that  he  would  sell  out  low,  and  he  was 
then  going  to  act  under  the  advice  of  Henry  Clay,"  The 
conversation  was  here  interrupted.  Before  this,  in  that  con- 
versation, Willis  also  said  that  he  had  been  acting  under  the 
advice  of  others  about  his  business,  and  had  found  that  it 
would  not  do.  What  business  he  alluded  to  particularly,  he 
did  not  say;  I  thought  he  referred  to  Amy  and  her  children. 
I  have  never  seen  Amy  and  her  children  in  tliis  State  since 
Willis'  death,  nor  have  I  heard  of  tlieir  being  here.  James 
Willis,  a  month  or  so  after  Elijah  Willis'  reported  death,  told 
me  that  he  and  Michael  Willis  had  been  on  to  Cincinnati; 
and  afterwards,  Michael  Willis  told  me  the  same  thing. 
James  Willis  told  me  that  the  man  who  had  died  there  was 
Elijah  Willis,  and  that  they  went  to  where  he  was  buried,  in 
a  negro-graveyard.  I  asked  why  they  did  not  fetch  his  body 
home,  and  he  replied,  "he  carried  himself  there,  and  he  may 
lie  there."  I  think  James  Willis  told  me  he  saw  JoUiffe 
there — that  he  was  kindly  treated  by  him. 


APPEALS  IN  EQUITY.  495 

Columbia,  May,  1860. 

Cross-examined. — Witness'  well  is  a  public  place,  good 
water,  and  many  persons  stop  there  in  passing.  I  borrowed 
money  from  Willis  bnt  twice;  this  was  several  years  ago;  it 
is  five  or  six  years  since  I  dined  at  E.  Willis'.  I  had  lost 
my  way  in  going  to  Reason  Wool  ley's,  and  happened  there 
accidentally.  I  have  seen  other  while  men  take  np  their 
little  negroes  in  their  laps — some  coal  black  little  negroes.  I 
think  Willis'  property  was  in  market  several  years  before  his 
death — a  good  while  before  my  conversation  with  him  at 
Barnwell.  I  am  pretty  certain  Willis  did  not  mention  Amy 
or  her  children  in  that  conversation. 

Direct,  resumed. — I  dined  at  Willis'  on  30th  March,  1S52, 
Reason  JVooIley,  sworn. — Witness  has  known  P^lijah  Wil- 
lis for  forty  years;  lived  in  one  mile  of  liim  for  ten  or  fifteen 
years  before  his  death.  Witness  knew  Amy;  went  to  Wil- 
lis' house  often;  worked  a  great  deal  for  him;  witness  and 
Willis  were  nsnally  very  friendly;  sometimes  a  little  at  vari- 
ance, not  long.  Willis  and  Amy  lived  in  the  same  honse; 
slept  in  the  same  honse;  as  witness  saw,  they  did  not  sleep 
in  the  same  bed;  several  mulatto  children;  Amy  had  five 
mnlatto  children  afier  Willis  bought  her;  two  of  them  died  ; 
Willis  carried  oti'  three;  Willis  called  the  children  his;  he 
treated  the  children  as  his  own  ;  acted  as  a  father  towards 
them;  eat  at  his  table,  nurse  them,  &c.  He  has  seen  Amy 
eat  at  Willis'  table  after  he  had  done  eating.  Willis  knew 
that  it  was  generally  reported  that  he  kept  Amy,  and  the 
children  were  his.  Witness  never  heard  him  deny  the  re- 
port. Amy  traded  considerably  at  Williston  ;  generally  at 
James  H.  Willis';  generally  upon  credit  when  Willis  was 
from  home.  Witness  has  purchased  goods  for  her  at  James 
H.  Willis';  the  goods  were  charged  to  Elijah  Willis.  Saw 
Amy  riding  in  Willis'  carriage  once.  He  went  with  her, 
and  left  her  at  the  honse  of  his  brother's  widow  till  he  re- 
turned home.  W'itness  knows  about  the  last  time  Willis  left 
the  Slate;  he  carried  Amy  and  all  her  children — three  black 
and  ihree  white  ones — and  Amy's   mother;  lie  said   he  was 


49G  APPEALS  IN  EaUITY. 


Willis  t)5.  Jolliffe. 


going  to  carry  them  to  Ohio,  to  Cincinnati;  he  said  he 
wanted  to  go  and  carry  them  and  free  them,  so  they  could 
have  the  henefit  of  his  property.  She  (Amy)  wanted  to 
come  back  witii  him;  he  said  to  her,  that  when  he  got  her 
out  of  South  Carolina  she  should  never  come  back  again. 
He  said  he  would  come  back  in  three  weeks  if  he  had  good 
luck,  and  then  he  intended  to  sell  all  his  property — make  a 
clean  sweep.  He  said  he  was  doing  well  here,  but  he  could 
not  remain  here  and  free  his  children,  and  let  them  have  his 
jH'operty.  He  said  he  did  not  intend  his  people  to  have  one 
cent  of  his  property,  if  he  could  help  it.  He  said,  if  he 
stayed  here  his  relations  would  make  slaves  of  Amy  and  her 
children  ;  he  said  his  relations  were  gaping  for  his  property, 
but  they  should  not  have  it.  Amy  and  her  children,  and 
her  mother,  the  night  before  they  started,  came  to  witness' 
house,  and  told  him  and  his  wife  good-bye.  Willis  and 
Amy,  and  her  mother  and  children,  took  the  car  next  day 
for  Augusta.  Witness  went  to  Willis'  house  the  morning  he 
left;  did  not  tell  him  good-bye;  had  no  heart  to  do  it ;' did 
not  want  to  part  with  him.  Willis  wanted  witnes.^  and  fam- 
ily to  go  with  him  ;  otfered  witness  to  pay  his  expenses,  and 
settle  him  better  than  he  then  was;  said  witness'  wife  had 
been  so  good  amongst  liis  children  in  time  of  sickness,  he 
wanted  her  to  go  with  him  ;  witness  told  him  his  wife  could 
not  go,  because  she  could  not  ride  in  a  car  or  carriage. 
Willis  never  returned;  none  of  Willis'  party  that  he  carried 
off  ever  returned.  Amy  had  a  brother,  a  mulatto,  named 
Gilbert;  was  nearly  white;  Willis  told  witness  that  when  he 
came  back  he  would  carry  Gilbert,  and  free  him. 

Cross-examined. — Willis  had  been  trying  to  sell  his  prop- 
erty before;  three  or  four  years  before  he  finally  left,  Willis 
carried  Amy  and  her  mother  and  children  off;  and  before, 
about  three  years  before  he  left  the  last  time.  Amy  and  her 
family  were  gone  about  two  months,  and  then  Willis  went 
and  brought  them  back.  Willis  never  told  witness  where  he 
carried  them,  or  why  he  brought  them  back.     Had  not  ad- 


APPEALS  IN  EaUITY.  4»7 

Columbia,  May,  1S60. 

vertised  his  property  for  sale  the  last  time  he  went.  Heard 
Willis  say  he  had  right  smart  of  money  owing  to  him.  Amy 
was  not  handsome.  Amy  had  several  husbands  before  she 
took  lip  with  Willis.  Willis  said  as  soon  as  he  could  come 
back,  and  make  a  clean  sweep,  he  would  leave. 

Direct,  reiiimed. — Willis  said  he  had  as  much  property  as 
he  wanted  ;  that  he  should  never  need  the  half  of  what  he 
had.  Amy's  last  husband  is  still  on  Willis'  plantation  ;  his 
name  is  Albert.  Willis  was  distressed  when  one  of  the 
children  died  ;  Dr.  Harley  attended  it. 

Depositiotis  of  Ary  Woollcy. 

The  witness  answers  and  says:  She  did  know  Elijah  Wil- 
lis, of  Barnwell  district,  now  deceased,  at  least  twenty-five 
(25)  years,  and  has  lived  near  him,  the  said  Elijah  Willis, 
during  the  whole  term  of  her  acquaintance,  and  never  at 
any  time  during  her  acquaintance  with  him  lived  further 
than  four  miles  from  him,  and  a  good  portion  of  the  time 
herself  and  husband  (R(>ason  Woolley)  were  in  the  employ- 
ment of  said  Elijah  Willis,  and  not  living  more  than  from 
half  to  three-fourths  of  a  mile  from  his  residence  in  Barn- 
well district. 

Second  liiterrogaiory. — Witness  answers  and  says:  That 
she  has  often  and  repeatedly  heard  Mr.  Willis  say  that  he 
intended  to  carry  a  family  of  colored  persons  he  had,  known 
as  Amy  and  her  family  and  children,  to  some  country  where 
they  would  be  free.  Witness  says  she  could  not  tell  any 
particular  time  or  date,  as  she  repeatedly  heard  him  make 
such  declarations,  and  the  last  time  she  heard  him  speak  of 
taking  Amy  and  her  family  olf  was  some  lime  in  the  spring 
of  185.5,  when  he  was  making  preparations  to  carry  ihcm  otf 
to  Cincinnati,  and  did  go  olf  with  them. 

Third  Interrogatory. — Witness  answers  and  says:  That 
Mr.  Willis  did,  some  weeks  previous  to  his  leaving  this  State 
with  the  family  o(  colored  persons  referred  to,  tell  her  his 


498  APPEALS  IN  EaUITY. 

Willis  vs.  JollifTe. 

object  for  taking  them  off  was  to  carry  them  wliere  they 
would  be  free,  and  to  provide  for  them. 

Fourth  Interros;utory. — Witness  answers  and  says:  That 
a  negro  woman  named  Amy,  and  her  mother  CeHa,  or  Cely, 
and  three  black  children  and  three  mulatto  children,  consti- 
tuted the  family  of  colored  people  that  Mr.  Willis  carried 
witli  him  to  Oliio.  Witness  says  Mr.  Willis  always  claimed 
to  be  the  father  of  the  mulatto  children  and  treated  them 
as  such,  and  Amy  as  his  woman,  but  never  heard  him  call 
her  his  concubine,  but  she  certainly  was  such,  and  was  so 
looked  upon. 

Fifth  Interrogatory.  —  Witness  answers  and  says:  She 
knows  that  x\my  was  tiie  reputed  concubine  of  Elijah  Wil- 
lis, or  in  other  words,  his  housekeeper,  who  seemed  to  man- 
age his  housekeeping,  and  acted  pretty  much  as  man  and 
wife.  Witness  says  slie  was  intimately  and  well  acquainted 
with  Mr.  Willis,  and  Amy  and  her  family,  and  often  heard 
]Mr.  Willis  pity  the  condition  of  the  mulatto  children,  and 
said  what  he  intended  to  do  with  and  for  them  by  taking 
them  to  Ohio,  where  they  would  be  free,  and  then  could  and 
would  provide  for  them. 

Witness  further  says:  That  Mr.  Willis  did  leave  his  resi- 
dence in  Barnwell  district  with  Amy  and  her  family,  as 
mentioned  in  the  fourth  interrogatory,  to  carry  them  to  Cin- 
cinnati, in  the  State  of  Ohio,  and  wished  her,  the  witness, 
and  her  family,  to  go  with  them,  which  she  declined  doing 
on  account  of  her  infirmity.  Since  which  time  she  has  not 
seen  Mr.  Willis,  nor  has  he  returned,  and  hears  and  believes 
that  he  is  dead,  and  that  he  died  in  Cincinnati,  in  the  Stale 
of  Ohio. 

Examination  of  William  Knotts. 

1.  The  witness  says  he  knows  Michael  Willis,  but  does 
not  know  the  plaintiff. 

2.  The  witness  answers  and  says,  that  he  knew  Elijah 
Willis  intimately  from   the  year  1S27  to  1833,  during  which 


APPEALS  IN  EaUITY.  499 

Columbia.  May,  1860. 

time  he  viewed  hiin   as  a  (Vieiicl,  and  saw  liiin  occasionally 
from  that  time  np  to  his  death. 

3.  Witness  says  that  some  time  in  the  year  1850  or  '51, 
Elijah  Willis  sent  for  this  deponent  to  come  to  his  honse, 
and  consnlted  him  i^.pon  the  propriety  of  making  a  deed  of  trust 
to  this  deponent  of  all  his  property,  to  be  held  by  him  in 
trust,  for  the  support  and  benefit  of  two  colored  women,  and 
the  children  of  the  younger  of  the  two  women  ;  that  he  did 
not  wish  these  two  women  and  the  chiUlren  ever  to  become 
slaves. 

4.  Witness  says  that  upon  the  proposition  of  Mr.  Willis  to 
iiim  of  this  deed  of  trust,  he  advised  him  not  to  make  it  at 
all,  but  if  he  wished  these  persons  to  be  free,  he  had  better 
take  tliem  out  to  a  non-slnveholding  State,  to  which  he  said, 
"I  think  that  would  be  a  good  idea." 

5.  Witness  says  he  knew  Mr.  Willis  about  twenty-three 
years. 

6.  Witness  says  he  was  a  man  of  strong  mind,  deter- 
mined will,  and  fully  ca[)able  of  attending  to  his  atfairs,  as 
far  as  this  deponent  could  judge. 

7.  Witness  says  he  has  answered  in  the  sixth  interrog- 
atory. 

S.  Witness  says  he  knew  all  the  persons  intimately  as 
named  in  the  interrogatory,  excepting  Dr.  .Toseph  J.  Harley 
and  James  Willis,  the  younger.  His  acquaintance  with  them 
refers  only  from  the  year  1828  to  1S3.}. 

9.  Witness  answers  and  says,  that  he  is  not  able  to  an- 
swer this  question,  as  he  is  not  able  to  judge  of  the  relative 
strength  of  the  min(]s  of  the  persons. 

10.  Witness  says  that  at  the  conference  referred  to,  Mr. 
Willis'  health  was  bad,  but  was  of  sound  and  disposing 
mind,  as  persons  of  his  age  and  health. 

To  the  Jirst  cross-iiiterro<^(ilory  witness  says,  that  he 
knew  him  intimately  from  the  years  1827  to  1833,  as  he 
was  then  his  neighbor;  since  then  deponent  moved  from 
there,  and  only  saw  him  occasionally  afterwards. 


500  APPEALS  IN  EaUITY. 

Willis  vs.  Joliiffe. 

2.  Witness  says  he  only  saw  Iiini  occasionally,  as  above 
stated,  and  can  only  judge  of  the  state  of  his  inind  from  the 
conference  above  alluded  to,  at  whicli  time  he  stayed  with 
him  one  night, 

3.  Witness  says  he  saw  no  change  in  his  mind  when  he 
occasionally  met  him,  only  such  change  as  age  and  sickness 
might  produce. 

4.  Witness  says  that  Mr.  Willis  did  send  for  liim  at  the 
lime  alluded  to,  to  come  and  buy  his  land  and  negroes;  that 
when  deponent  went  there,  Mr.  Willis  told  him  "that  al- 
though he  sent  for  him  to  purchase  his  lands  and  negroes, 
he  only  wished  to  see  him  to  consult  with  him  to  make  this 
deed  of  trust,  above  mentioned,"  and  this  was  the  only  in- 
terview on  business. 

Depositions  of  JVillison  B.  Beazley. 

1.  Witness  knew  the  late  Elijah  Willis,  in  Barnwell  dis- 
trict. South  Carolina,  for  about  the  period  of  fourteen  years. 
Witness  was  merchant  and  post-master  at  Williston,  a  rail- 
road village  in  Barnwell  district,  and  in  both  of  these  capa- 
cities had  dealings  with  said  Elijah  Willis,  who  v/as  a 
planter,  and  owned  a  saw  mill,  residing  about  five  miles 
from  Williston. 

2.  Witness  cannot  say  that  the  said  Elijah  Willis  ever  lold 
him  directly  or  positively  what  he  intended  to  do  with  cer- 
tain colored  people  of  iiis;  but  on  several  occasions,  for  a 
period  of  about  one  year  previous  to  the  death  of  said  Elijah 
Willis,  said  Elijah  Willis  did  converse  with  said  witness 
about  selling  his  plantation,  negroes  and  stock,  with  a  view 
to  moving  to  a  free  State,  on  account  of  his  colored  family 
he  was  raising;  seemed  to  regret  his  course  of  life;  the  dis- 
respect he  had  brought  on  himself,  and  thouglit  it  best  he 
should  move,  with  said  colored  family,  to  some  free  State. 
He  wanted  witness  to  find  him  a  purchaser;  otlered  to  sell 
to  witness  his  lands,  other  negro  slaves,  stock,  growing  crop 
and  produce  on  hand,  for  thirty-five  thousand  dollars.     Wit- 


APPEALS  IN   EaUITY.  501 

Columbia.  May,  IbOO. 

ness  took  two  weeks  to  consider  the  projiosition,  but  fiiiMlly 
declined  the  purchase.  These  were  tlie  circuuistances  which 
led  to  these  frequent  conversations. 

3.  Elijah  Wilhs  finally  left  Williston,  on  the  railroad  cars, 
(on  the  Western  train  of  cars,)  with  a  colored  family,  a  mu- 
latto woman  named  Amy,  her  children,  and  Amy's  mother, 
a  black  woman,  about  the  first  of  May,  in  the  year  eighteen 
hundred  and  fifty- four  or  fifty-five,  witness  is  not  distinct 
now  in  bis  memory  which  year,  but  thinks  the  latter.  He 
left  iinexpecledly  to  witniv-^s.  Elijah  Willis  came  into  Wil- 
liston the  day  he  lei't,  some  three  hours  before  the  cars  left, 
and  bis  wagon,  with  the -family  alluded  to,  came  about  two 
hours  before  the  cars  left.  They  unloaded  their  baggage  at 
the  usual  car  landing,  in  front  of  witness'  store.  Said  Elijah 
Willis  came  into  witness'  store,  asked  for  his  letters  and 
papers,  and  store  account,  as  he  wished  to  settle,  as  he  was 
going  away.  Witness  did  not  have  them  drawn  off,  and 
said  Willis  then  told  him  to  have  them  ready,  as  he  would 
be  back  in  about  three  weeks.  He  did  not  speak  farther  then 
as  to  the  object  of  his  journey.  That  was  the  last  time, 
when  he  bid  him  good  bye  on  the  cars,  witness  ever  saw 
Elijah  Willis. 

4.  The  colored  people  I  have  referred  to  in  previous  an- 
swers were  a  mulatto  woman  called  Amy,  lier  mother,  a 
black  negro,  name  not  recollected,  two  black  children  of 
Amy,  (the  oldest  of  her  children  about  grown  when  Elijah 
Willis  left  the  State,)  names  not  recollected,  and  four  chil- 
dren of  Amy  who  were  mulattos,  thinks  they  were  all  girls, 
names  not  recollected.  The  last  four  were  generally  con- 
siderfMj,  in  the  neighborhood,  to  be  the  children  of  said 
Elijah  Willis.  Elijah  Willis  never  told  witness  in  so  many 
words  that  Amy  was  his  concubine,  or  that  any  of  her  chil- 
dren were  his,  but  spoke  of  them  in  the  manner  described 
by  witness  in  his  answer  to  the  second  interrogatory  herein- 
before asked,  which  is  hereby  referred  to  as  an  answer  to 
this   part  of  this  interrogatory.     Wiine.ss  further  says,  that 


502  APPEALS  IN  EaUITY. 

Willis  vs.  Jolliffe. 

said  negro  woman,  Amy,  generally  traded  in  Williston, 
bought  largely  for  a  negro,  often  had  plenty  of  money,  and 
frequently  bought  without  cash,  on  credit.  The  merchants 
generally  let  her  have  what  she  wanted,  gave  her  a  copy  of 
the  bill,  and  tlie  next  time  the  old  man,  Elijah  Willis,  would 
come  to  Williston,  he  would  pay  all  such  bills  without  objec- 
tion or  inquiry. 

Depositions  of  John  H.  Howard. 

1.  The  witness  answers  and  says,  I  did  know  E.  Willis  for 
five  or  six  years  immediately  before  his  death.  I  was  his 
agent  to  sell  lumbei',  and  he  visited  me  about  twice  a  year. 

2.  Witness  says,  I  had  two  conversations  with  him  in 
relation  to  certain  colored  people.  On  the  occasion  of  one  of 
his  visits,  in  the  year  1854,  I  think,  he  expressed  great  anxie- 
ty about  these  people;  his  mind  was  very  much  disturbed 
about  them.  He  asked  my  advice  what  he  had  best  do 
about  them  to  get  them  free.  I  told  him  he  could  not  free 
them  in  this  State.  On  the  occasion  of  his  visit  in  1S55,  in 
March  or  April,  he  said  as  he  could  not  do  so  in  this  State, 
he  had  determined  to  take  them  to  Ohio,  and  free  them 
there;  that  he  had  been  to  Ohio,  and  had  made  arrange- 
ments to  take  them  to  Cincinnati. 

3.  Witness  says,  I  don't  know  under  what  circumstances 
he  finally  left  the  State.  I  have  stated  all  I  knew  of  his 
intentions,  and  the  object  of  his  journey,  in  the  answer  to  the 
second  interrogatory. 

4.  Witness  says,  the  colored  people  were  Amy  and  tiiree 
mulatto  children ;  he  named  Amy,  but  he  did  not  mention 
the  names  of  the  three  children;  Elijah  W^illis  spoke  of  them 
as  his  colored  concubine  and  children. 

James  Meredith,  examined  by  commission. — I  knew  Elijah 
Willis  ten  or  twelve  years  before  his  death,  as  a  citizen  of 
Barnwell  district,  S.  C,  and  often  saw  him  travelling  on  the 
railroad,  I  being  a  conductor. 

About  the  month  of  April,  1855,  as  well  as  I  remember, 


APPEALS  IN  EaUITY.  503 

Columliia,  May.  1S(>0. 

Elijah  Willis  took  passage  on  the  upward  train  of  cars  on 
the  South  Carolina  Railroad,  having  witli  him  a  family  of 
negroes.  In  rcjily  to  a  question,  asked  hy  me,  E.  Willis 
stated  that  he  was  not  taking  them  to  Hamhnrg  for  sale,  hut 
was  on  his  way  to  Cincinnati,  Ohio,  with  them,  and  my 
recollection  is  that  he  spoke  of  them  as  his  family.  He  iiad, 
as  baggage,  several  new  trunks,  and  no  such  luggage  as 
negroes  usually  carry.  Tiie  negroes  were  all  dressed  in 
much  better  style  than  is  usual  with  negroes;  and  Mr.  Willis 
sat  with  them  in  the  car  nearly  all  the  time.  He  entered  the 
cars  with  them  at  Williston.  I  do  not  remember  to  have 
heard  him  speak  of  them  at  any  other  time. 

My  belief  is,  that  on  the  occasion  referred  to  in  the  forego- 
ing answer,  E.  Willis  finally  left  the  State  of  South  Carolina. 
Nothing  more  than  is  stated  in  the  preceding  answer  was 
said  by  him  as  to  his  intention,  nor  as  to  the  object  of  his 
journey. 

Depositions  of  Dr.  John  G.  Guiij^nard. 

1.  I  was  acquainted  with  Willis  twenty  years  or  more. 

2.  We  occasionally  visited  each  other.  I  had  very  few 
professional  calls  to  his  jilace  previous  to  1850,  and  not  very 
many  since. 

3.  His  business  appeared  well  conducted,  his  habits  regu- 
lar, and  his  ability  fully  suMicient  for  the  management  of  his 
business. 

4.  About  five  years  or  more  previous  to  his  death,  he 
appeared  to  become  reserved  and  melancholy  in  social  inter- 
course. 

5.  Elijah  Willis,  about  two  years,  more  or  less,  jircn'ions  to 
his  decease,  took  occasion  to  spend  a  night  with  me  at  my 
residence.  We  were  not  incumbered  by  company,  and  as  it 
were  tete-a-tete;  he  conversed  freely,  staling  that  his  situa- 
tion was  apparent  to  his  neighbors,  distressing  to  him.  That 
the  connection  he  liad  formed  was  evidently  nnpleasant 
to  his   relations   and   acquaintances,   and   disreputable.     He 


504  APPEALS  IN  EaUITY. 

Willis  vs.  Jolliffe. 

wished  to  place  the  cause  of  his  disquietude  ou  some  small 
farm,  remote  from  this  region,  where  they  could  be  in  socie- 
ty of  their  own  class.  He  had  an  idea  of  purchasing  a  small 
farm  in  Tennessee  for  them.  I  recommended  placing  them 
in  the  neighborhood  of  Norfolk,  Virginia,  where  about  two 
thousand  or  more  free  persons  of  color  resided,  and  an  inef- 
fectual attempt  for  their  expulsion  had  been  made  before  the 
legislature  of  Virginia.  He  expressed  himself  under  obliga- 
tion to  me  for  the  recommendation  or  suggestion,  and,  as  I 
understood,  was  governed  by  it  so  far  as  soon  afterwards  to 
carry  tlie  slaves  alluded  to,  viz:  Amy  and  children,  to  Vir- 
ginia, for  the  purpose  of  settling  them.  But  little  commu- 
nication was  held  between  us  afterwards.  I  did,  on  one 
occasion  afterwards,  at  iiis  house,  in  presence  of  F.  W.  Mat- 
thews, suggest  to  him  in  strong  terms  the  propriety  of  shak- 
ing off  liis  connection  with  Amy,  and  endeavoring  to  regain 
his  proper  position  in  society. 

6.  I  had  some  business  transaction  with  him  early  in  May, 
1855.  He  stated  to  me  that  ho  would  travel  abroad  soon, 
and  return  in  a  few  weeks,  and  probably  occupy  the  sum- 
mer, as  he  did  for  a  year  or  so  past,  in  travelling. 

James  M.  Gitchell,  sworn. — The  paper  marked  A  (the 
will)  is  in  my  own  handwriting.  It  was  written  under  the 
immediate  direction  and  supervision  of  Elijah  Willis.  Said 
Elijah  Willis  came  to  the  office  of  Jolliffe  &  Gitchell,  in  the 
City  of  Cincinnati,  Ohio,  on  the  day  previous  to  the  date  of 
the  will,  and  introduced  himself  as  Elijah  Willis,  of  Barn- 
well district,  in  the  State  of  South  Carolina,  and  said  that  his 
object  in  coming  to  Ohio  was  to  make  his  will,  and  provide 
for  certain  persons  whom  he  held  as  slaves  in  South  Caro- 
lina. That  he  desired  to  make  those  slaves  his  heirs,  and 
wished  to  find  some  persons  of  property  and  character  in 
Ohio,  who  would  consent  to  act  as  his  executors.  Mr.  Jolliffe 
recommended  several  persons,  and  finally  went  with  Mr. 
Willis  to  see  Messrs.  Ernst  and  Harwood,  who  agreed  to  act 
as  executors,  and  with  whom  Mr.  Willis  seemed  to  be  satis- 


APPEALS  IN  EaUlTY.  505 

Columbia,  May,  1860. 

fied.  When  the  will  was  being  written,  Mr,  Wilhs  insisted 
that  Mr.  Jolliffe  should  act  as  one  of  the  executors.  He,  at 
first,  declined,  hut  finally  consented  at  the  urgent  solicitation 
of  Mr,  Willis,  and  his  name  was  inserted  as  one  of  the  exec- 
utors, Elijah  Willis  was  present  during  the  time  said  paper 
(the  will)  was  being  written,  and  read  it  himself  after  it  was 
finished.  Said  paper  was  executed  in  duplicate,  either  copy- 
to  be  and  have  the  effect  of  an  original,  and  one  copy  was 
retained  by  Mr,  .folliffe  and  myself,  at  the  request  of  Mr. 
Willis,  and  the  other  taken  by  liimself. 

Mr.  Willis  told  me  at  the  time  said  paper  A  (the  will)  was 
being  written,  and  after  its  execution,  that  it  was  his  pnrjiose 
to  have  Amy  and  her  seven  children,  Elder,  Ellick,  Philip, 
Clarissa  Ann,  Julia  Ann,  Eliza  Ann,  and  Savage,  the  persons 
named  in  said  paper,  as  his  heirs,  brought  to  the  State  of 
Ohio,  and  set  free.  On  parting  with  Mr.  Willis,  he  told  me 
that  he  would  return  to  South  Carolina,  and  so  arrange  his 
business  there  as  to  bring  the  persons  named  to  Ohio  him- 
self, and  that  he  thought  he  should  be  in  Cincinnati  with 
them  in  about  one  year  from  that  time.  After  that,  I  saw 
or  heard  nothing  further  from  Mr,  Willis  until  I  heard  that 
he  had  died  upon  the  wliarf,  and  I  saw  his  corpse  at  the 
Dumas  House,  in  this  city,  on  the  21st  day  of  May,  l.Soo, 

Thomas  Ewiiii^,  Jr.,  sworn. — I  am  a  practising  lawyer  in 
the  State  of  Ohio,  There  is  no  statute  in  the  State  of  Ohio 
relative  to  emancipation  or  manumission  that  I  know  of.  In 
my  opinion,  wlicre  a  slave  is  brought  into  this  State,  or 
comes  into  it  by  or  with  the  consent  of  the  owner,  such  slave 
is  emancipated  (without  formal  act  or  deed  of  emancipation) 
by  operation  of  the  common  law.  I  believe  that  such  is  the 
opinion  of  gentlemen  of  the  legal  profession  in  the  Slate  of 
Ohio.  I  never  heard  a  contrary  opinion  expressed  by  any 
member  of  the  profession  here.  I  believe  that  there  have 
been  decisions  by  the  inferior  Courts  of  this  Slate  to  that 
effect.  But  I  have  been  unable  to  ascertain  that  the  ques- 
tion  has  ever  been   presented  to  the  Supreme  Court  of  the 


50G  APPEALS  IN  EQUITY. 

Willis  vs.  Jollifle. 

State,  and  have  been  unable  to  find  any  decisioti  upon  the 
question  in  any  of  tiie  Reports  of  its  decisions. 

William  C.  McDowell,  sworn. — I  am  a  lawyer,  practising 
in  Cincinnati,  Oriio.  In  Ohio  there  is  no  statute  on  tiie  sub- 
ject of  either  emancipation  or  manumission.  Nor  is  there, 
so  far  as  I  know,  and  I  have  made  some  examination  on  the 
subject,  any  case  upon  that  subject  reported  in  our  Supreme 
Court  Reports.  I  take  it  that  no  formal  act  of  emancipation, 
by  deed  or  otherwise,  is  required  in  the  State  of  Ohio;  the 
law  being,  as  I  understand  it,  that  thu  moment  a  slave,  with 
the  consent  of  his  master,  comes  into  the  State,  he  is  thereby 
free.  Section  6  of  Article  I  of  Ohio  Constitution  provides 
that  "There  shall  be  no  slavery  in  this  State,  nor  involun- 
tary servitude,  unless  for  the  punishment  of  crime." 

From  this,  and  the  common  law  on  the  subjt^ct,  it  is 
universally  held  by  the  lawyers  here,  so  far  as  I  know,  that 
when  a  slave  is  in  Ohio,  by  his  master's  consent,  he  is  there- 
by freed.  I  have  understood  that  the  Supreme  Court  of 
Oiiio  on  the  circuit,  viz:  in  Warren  county,  Ohio,  held  the 
same  doctrine.  But  decisions  of  that  Court  on  the  circuit 
are  not  reported  in  our  Reports.  The  law  was  so  held  by 
Judge  Norris,  of  the  Common  Pleas  Court,  in  a  circuit  ad- 
joining this  county.  I  regard  the  law  upon  that  subject  to 
be  without  doubt,  as  I  have  just  indicated. 

Jilex(i)ider  H.  McGnffey,  sworn. — I  am  a  practising  law- 
yer in  the  State  of  Ohio.  I  am  not  aware  of  any  law  of  Ohio 
in  regard  to  the  emancipation  or  manumission  of  slaves.  No 
formal  act  of  emancipation,  by  deed  or  otherwise,  is  requi- 
site. Our  Courts  have  uniformly  held,  that  if  a  slave  is 
brought  into  Ohio,  by  consent  of  his  master,  he  is  thereby 
emancipated. 

William  Citllutn,  sworn.  (Dec.  5th,  1855.) — I  saw  a  man 
with  his  family  on  the  Strader,  who  was  said  to  be  Elijah 
Willis,  of  South  Carolina.  He  was  a  large  man  and  fieshy; 
about  forty-five  or  fifty  years  of  age.     The  clerk  of  the  boat 


APPEALS  IN  EaUITY.  507 


Columbia,  May.  1860. 


told  me  tliat  was  hi.s  name.     I   do  not  recollect  the  time;  it 
was  last  summer. 

I  talked  with  him,  and  asked  him  where  he  was  going 
with  the  colored  family.  He  said  he  was  going  to  Ohio,  to 
set  them  free,  and  school  the  children.  There  were  five  or 
six  children,  two  a  good  deal  older  and  darker  than  the  rest; 
and  then  there  was  the  mother  of  the  family,  who  was  a  dark 
yellow  woman.  The  yonnger  children  were  light  miilattoes. 
One  was  an  infimt,  and  the  others  between  three  and  ten 
years  of  age.  Mr.  Willis  said,  too,  that  he  was  going  to  buy 
them  a  farm ;  but  whether  he  did  so  or  not,  I  don't  know.  I 
asked  him  if  the  children  were  his  own.  He  said  he  was 
the  father  of  part  of  them. 

Robert  S.  Dumi/is^,  sworn. — I  did  see  a  person  represent- 
ing himself  to  be  a  Mr,  Willis,  who  came  iii)on  the  boat 
"Jacob  Strader,"  of  which  I  am  the  clerk,  and  at  Lonisville. 
He  gave  his  name  to  me,  to  be  entered  n[)on  the  hooks,  as 
Mr.  Willis,  and  paid  for  a  passage  for  himself,  and  a  colored 
woman  and  some  colored  children,  from  Lonisville  to  Cin- 
cinnati. This  was  some  time  in  May,  1855,  as  well  as  I  can 
recollect.  I  never  take  any  colored  persons  npon  the  i>oat 
when  brought  by  a  stranger  to  me,  without  referring  tlie  per- 
son bringing  them  to  the  captain  of  the  boat.  I  referred  Mr. 
Willis  to  him,  before  giving  him  passage,  and  the  captain 
came  to  me  and  said  it  was  all  right,  and  the  colored  persons 
were  then  received  as  passengers.  He  told  me  that  the 
woman   and  children   were  his. 

Charles  E.  Cist,  sworn. — I  am  a  practising  lawyer  in  the 
State  of  Ohio.  There  is  no  law  of  Ohio  in  the  statute  book 
as  to  emancipation  or  manumission.  Onr  Courts  have  uni- 
formly held,  I  believe,  that  no  formal  act  of  emancipation, 
by  deed  or  otherwise,  is  necessary.  There  is  no  decision  in 
the  printed  Reports  of  the  Supreme  Court  in  Banc,  (which 
is  the  only  State  Court  whose  Reports  are  printed  by  author- 
ity, I  believe,)  upon  the  subject. 

Edward  Ilancood,  sworn. — I    did    decline   to    qualify   as 


508  APPEALS  IN  EQUITY. 

Willis  vs.  Jolliffe. 

executor  of  Elijah  Willis.  The  written  renunciation  is  on 
file  in  the  Probate  Court,  and  I  have  no  control  over  it. 

Mr.  Willis  came  to  my  laboratory  with  a  letter  of  intro- 
duction from  Mr.  Jolliffe  to  me,  about  that  time,  (February, 
1854.)  He  informed  me  that  he  had  asked  Mr.  Jolliffe  to 
give  him  an  introduction  to  two  persons,  one  of  whom  was 
myself,  requesting  me  to  act  as  his  executor.  He  stated  that 
he  bad  a  family  of  colored  persons  in  South  Carolina,  a  part 
of  whom  were  his  own  children,  and  that  he  wished  to 
bring  tbe  family  to  Cincinnati,  and  free  them.  He  stated 
tbat  lie  considered  himself  worth  in  tbe  neighborhood  of 
$75,000,  which  property  he  wished  to  settle  upon  his  family. 
He  said  that  he  was  inclineJ  to  apoplexy,  and  was  liable  at 
any  moment  to  be  called  away,  for  which  reason  he  wished 
to  make  his  will,  and  asked  me  if  I  was  willing  to  act  as  his 
executor.  Before  answering  him  that  I  was  willing,  I  asked 
him  if  he  had  other  slaves  besides  this  family.  He  said  he 
had.  I  then  stated  to  him  that  if  he  expected  to  be  taken 
away  suddenly,  and  expected  me  to  act  as  executor  in  sell- 
ing tliem,  I  could  not  consent  to  do  it.  He  said  I  should 
not  bave  anything  of  that  kind  to  attend  to;  that  he  intended 
to  make  arrangements  with  reference  to  them  liimself,  at 
once.  I  urged  him  to  liberate  them,  and  he  left  the  impres- 
sion on  my  mind  that  he  would  seriously  consider  the  ques- 
tion. 

He  made  known  to  me  his  desire,  in  case  he  should  be 
taken  away,  in  reference  to  the  disposal  of  his  property  for 
the  benefit  of  his  family.  He  said  that  he  wished  them 
located  on  Western  lands,  in  the  farming  business,  eitlier  in 
this  State,  Illinois,  or  Wisconsin.  He  said  that  he  hoped 
that  his  life  would  be  spared  long  enoua:h  not  to  give  me 
any  trouble  in  reference  to  the  family;  that  his  only  object 
in  making  a  will,  and  having  executors,  was  to  provide  for 
the  contingency  of  a  sudden  death.  He  came  to  my  office 
in  a  buggy,  and  aft(ir  our  conversation  together,  requested 
me  to  accompany  him  to  see  Mr.  Ernst.     I  went  with  him, 


APPEALS  IN  EaUITY.  509 

Columbia,  May,  18b0. 

but  Mr.  Ernst  was  not  at  homo,  and  Mr.  Willis  returned  to 
his  boarding  house.  I  saw  him  but  once  afterwards,  and 
that  for  but  a  moment,  until  I  saw  him  in  his  coffin. 

I  necessarily  looked  at  him  with  a  Rood  deal  of  interest 
and  care,  to  know  what  kind  of  a  fiian  I  was  in  company 
with  on  such  an  important  occasion.  I  got  the  im|)ression 
that  he  was  a  careful  business  man,  perfectly  sound  in  mind. 

jindrew  H.  Ernst,  sworn. — Was  appointed  executor,  but 
renounced  and  declined  to  qualify  on  tfie  will. 

I  first  saw  Mr.  Willis  at  the  Broalway  Hotel,  where  I 
called  at  his  request,  and  where  he  broached  the  subject  on 
which  he  wished  to  see  ine.  He  told  me  that  he  liad  a  fam- 
ily in  South  Carolina,  which  he  wisiied  to  free,  and  that  he 
wanted  to  make  arrangements  to  bring  them  away.  He 
gave  me  to  understand  the  condition  of  the  faniily — that  the 
children  were  his  children  by  a  colored  woman,  and  that  he 
wanted  to  transfer  them  to  a  free  State,  with  his  property. 
The  object  of  his  visit  seemed  to  ])e  for  that  purpose  ;  he  not 
having  fully  determined  in  his  own  mind  what  course  to 
take  to  accomplish  his  Qud.  He  wished  to  acquaint  himself 
with  the  character  of  parties  who  would  execute  his  pur- 
poses in  regard  to  the  disposition  of  his  family  and  his  prop- 
erty in  case  he  was  unable  to  carry  out  his  purposes  himself. 
He  asked  me  whether  I  would  act  as  one  of  his  executors, 
in  case  he  should  not  live  to  carry  out  the  object  himself. 
My  interview  with  him  led  me  to  regard  him  as  a  man  of 
sound  mind.  His  plans  seemed  to  be  well  arranged,  I 
think  my  inlerview  fully  justifies  me  in  saying  that  he  was 
then  a  man  of  sound  and  calculating  mind. 

The  defendant,  John  .Tolliffe,  a|)pealed  on  the  grounds: 
I.   liecanse  the  negro  woman  Amy,  and  her  children,  were 
not  slaves,  but  free  persons  of  color,  at  the  death  of  the  tes- 
tator; and    were,  therefore,  comptient    legatees,  under  said 
will. 

And  to  sustain  the  above  ground,  he  submitted  the  follow- 
ing propositions : 


510  APPEALS  IN  EaUITY. 

Willis  vs.  Jolliffe. 

1.  That  there  is  no  law  in  South  Carolina,  either  by 
statute  or  otherwise,  nor  any  State  policy  in  regard  to  slave- 
ry, on  which  the  Courts  can  found  their  judgments,  or  of 
which  they  can  take  cognizance  or  judicial  notice,  that  pro- 
hibits a  citizen  of  this  State  from  removing  his  slaves  from 
this  to  any  other  State,  either  to  enhance  the  value  of  their 
labor,  if  to  a  slave  State,  or  for  emancipation,  if  to  a  free 
State;  and  that  any  judgment  to  the  contrary  is  against  law, 
and  in  derogation  of  the  rights  of  the  owner  of  slaves. 

2.  That  if  an  owner  voluntarily  takes  his  slave  to  a  State 
or  country  where  slavery  is  known  to  be  prohibited,  with  an 
expressed  and  avowed  intention  that  such  slave  shall  never 
return,  but  remain  there  for  the  sole  purpose,  and  none  other, 
of  being  free,  and  leaves  such  slave  in  the  free  State  or  coun- 
try, by  death,  or  otherwise,  then  the  slave  is  ipso  facto  free; 
and  that  there  is  no  law  in  South  Carolina,  or  elsewhere,  to 
the  contrary. 

3.  That  it  is  the  duty  of  South  Carolina,  as  one  of  the 
Confederated  States  of  this  Union,  to  concede  to  the  other 
States  the  same  power  and  authority  of  sovereignty  \vhich 
she  claims  for  herself,  of  declaring  and  maintaining  the 
status  and  condition  of  all  persons.,  whether  white  or  Afri- 
can, voluntarily  coming  within  their  borders  for  permanent 
residence;  and  a  judgment  to  the  contrary  assumes  and 
arrogates  to  ourselves  more  than  we  are  willing  to  concede 
to  the  other  States,  having  equal  dignity  and  sovereignty. 

II,  Because,  while  Amy  and  her  children,  and  tlieir  for- 
mer master,  were  within  the  limits  of  the  State  of  Ohio, 
there  was  not  only  no  Constitution  or  statute  law,  provid- 
ing for  their  slavery,  but  the  most  solemn  and  positive  Con- 
stitutional law,  to  the  etfect  that  a  master  taking  his  slave, 
voluntarily,  into  Ohio,  jnanumission  takes  place  as  efiectu- 
ally  as  if  by  deed;  and  although  this  case  is  to  be  tried  in 
our  Court,  the  South  Carolina  law  retires,  and  leaves  the 
question  to  be  decided  exclusively  by  the  Ohio  law. 

III.  Because  the  decree  is  predicated  mainly  on  the  basis 
that  Willis,  in  Ohio,  and  up  to  the  time  of  his  death,  had 


APPEALS  IN  EaUITY.  511 

Coliiiuhia,  Mny,  IbfiO. 

the  power  and  the  right  to  brnig  Amy  ^^nJ  her  cliihlrcn  back 
to  South  CaroHna — and  thus  to  redintegrate  them  into  their 
original  state  of  slavery.  But  to  this  view  we  submit,  as  a 
conclusive  answer: 

1.  If  Willis  had  such  right  and  power,  then,  not  having 
exercised  it  to  restore  them  to  slavery,  he  has  as  ctfectually  left 
them  in  a  state  of  freedom,  as  if  he  had  executed  a  deed  of 
manumission. 

2.  If  such  was  the  condition  of  Amy  and  her  children, 
the  result  must,  on  every  principle  of  justice  and  equity,  fix 
their  fate,  whether  for  slavery  or  freedom.  More  especially, 
when  it  is  remembered  that,  in  Ohio,  slavery  is  prohibited 
by  bei  fundamental  law. 

A  slave  carried  into  a  State  where  slavery  is  proliibited, 
with  master's  consent,  and  not  for  a  temporary  purpose,  be- 
comes free. 

When  a  negro  slave,  with  the  permission  of  his  owner, 
takes  up  his  residence  in  a  free  State,  and  afterwards  returns 
to  this  Slate,  such  owner  cannot  resume  his  property  in  Iiim. 

3.  But  the  fact  is  not  so.  By  the  positive  Statute  of 
South  Carolina,  Amy  and  her  children,  whether  slaves  or 
free,  would  inevitably  be  expelled  from  the  State,  or  be  re- 
dintegrated into  their  former  state  of  slavery,  by  way  of  for- 
feiture to  the  State,  and  not  as  the  property  of  Willis. 

4.  Because  bequest  of  property  to  slaves  is  substantial 
emancipation,  and  the  slaves  are  manumitted  by  the  will, 
and  not  by  the  executor's  deeds  of  manumission. 

5.  Because  the  assent  of  the  executor  is  always  to  be 
presumed,  and  when  given,  is  proof  of  assets,  and  is  irrevo- 
cable, and  has  relation  to  the  time  of  testator's  death. 

Bau.skelt,  Jol/iffc,  Cobb,  Petigru,  for  appellant. 

Jlldricli,  contra." 

•The  llcpnrtiT  (leeiiis  it  iinnceessiiry  to  pnlilisli  ihe  arjfiiinents  of  fiMiii>fl,  the 
case  having  heen  fully  and  elal)orntely  di^»c^^^s!>e(l  hy  the  Court,  and  e.Hiift-iaJly  l>y 
Chancellor  Wardlaw,  in  hit*  two  alile  and  nia.-lcrly  opinious. 


513  APPEALS  IN  EaUITY. 

Willis  vs.  Jolliffe. 

The  opinion  of  the  Court  was  delivered  by 

O'Neall,  C.  .1.  The  elaborate  decree  of  my  brother  Ward- 
law  (while  a  Chancellor)  is  in  many  of  its  parts  entitled  to 
tlie  commendation  of  every  well-informed  mind.  Yet  there 
are  parts  which  have  not  met  with  the  concurrence  of  this 
Court.  One,  a  very  material  part,  on  which  the  whole  case 
depends,  has  not  been  satisfactory  to  a  majority.  Indeed,  on 
it  we  have  come  to  a  conclusion  er.tirely  antagonistic  to  ihe 
decree. 

Ill  the  first  place,  I  turn  to  the  Act  of  1820,  referred  to 
and  considered  in  Frazier  vs.  Frazier,  2  Hill  Ch.,  311.  By 
that  Act  the  evil  was  stated  "the  great  and  rapid  increase  of 
free  negroes  and  mulattoes  in  this  State,  by  migration  and 
emancipation,^^  the  remedy  provided  was,  "that  no  slave 
shall  hereafter  be  emancipated  but  by  Act  of  the  legislature." 

It  was  argued  that  the  statement  of  the  evil  was  the 
increase  of  free  negroes  and  of  mulattoes  but  the  true  read- 
ing of  the  Act,  is,  the  adjective  free  qualifies  mulattoes,  as 
well  as  negroes:  and  read  in  that  way  we  have  the  evil  as 
the  legislature  intended  to  state  it,  the  great  and  rapid  in- 
crease of  free  negroes  and  free  mulattoes  in  this  State. 

What  is  the  efl'ect  of  the  enactment  that  "no  slave  shall 
hereafter  be  emanci{)ated  but  by  Act  of  the  legislature  ?" 
In  Frazier  vs.  Frazier,  twenty-five  years  ago,  with  the  con- 
currence of  my  distinguished  brother  and  friend.  Judge 
David  Johnson,  I  stated  that  this  Act  could  not  "have  effect 
upon  emancipation  beyond  the  limits  of  the  State."  It  is 
very  true  my  brother  Harper,  the  other  member  of  the  Court, 
did  not  sign  the  opinion,  but  he  gave  no  dissent,  and  I  hap- 
pen to  know  that  his  objection  was  more  to  the  competency 
of  slaves  to  have  such  a  decree  pronounced  in  their  favor 
than  to  the  principles  of  the  decree.  He  recognized  the 
general  principles  of  the  decree  in  Gordon  vs.  Blackiiian,  2 
Rich.,  45,  in  which  he  said:  "In  Frazier  vs.  Frazier,  the 
Court  decided  that  it  would  not  interfere  to  prevent  the  execu- 
tion ot  the  trust  when  there  was  no  law  to  forbid  it."     The 


APPEALS  L\  EQUITY.  513 


Columbia.  May,  1860. 


case  of  Frazier  vs.  Frazier  was  also  recognized  in  Fhiley  vs. 
Hunter,  2  Strob.,  214.  The  case  of  Frazier  vs.  Frazier  was 
the  law  until  the  Act  of  1841;  that  Act  provided  that  a  devise 
for  the  removal  of  a  slave  from  the  State  for  emancipation 
should  be  void.  That  introduced  a  new  rule  of  action,  and 
it  is  our  duty  to  enforce  it  when  a  proper  case  arises.  If  the 
objects  of  the  testator's  bounty,  Amy  and  her  children,  had 
remained  in  the  State  until  the  testator's  death,  there  can  be 
no  doubt  that  the  devise  directing  them  to  be  taken  by  his 
executors  to  Ohio,  and  there  to  be  manumitted,  would  have 
been  contrary  to  law,  and  the  other  devises  in  their  favor 
must  have  failed.  But  Elijah  Willis,  in  his  lifetime,  removed 
them  to  Ohio,  with  the  avowed  purpose  to  emancipate  them. 
He  died  when  he  and  they  were  on  the  northern  bank  of  the 
Ohio,  in  the  City  of  Cincinnati.  If  that  act  made  Amy  and 
her  children  free,  then  it  follows  that  the  devises  in  their 
favor  are  good. 

The  Constitution  of  Ohio,  in  the  spirit  of  the  Ordinance 
for  the  government  of  the  territory  north-west  of  the  Ohia 
river,  provides  "there  shall  be  no  slavery  in  this  State,  nor 
involuntary  servitude  unless  for  the  punishment  of  crime." 
It  is  vain  to  say  that  this  is  contrary  to  the  Constitution  of 
the  United  States.  Each  and  every  State  as  it  emerges  from 
a  territorial  government,  is  free  to  adopt  their  Constitution, 
allowing  or  rejecting  slavery. 

This  provision  cannot  reach  cases  of  persons  passing 
through  Ohio  with  slaves,  or  where  a  slave  accompanies  his 
master  or  mistress  on  a  temporary  sojourn  for  business  or 
pleasure.  For,  in  point  of  fact,  the  master,  and  the  slave,  as 
his  property,  are  entitled  by  the  comity  of  States,  and  also  by 
the  Constitution  of  the  United  States,  to  be  protected.  Cobb 
on  Negro  Slavery,  chap.  7,  sec.  1. 52,  153. 

But  the  case  is  very  different   when  the  master  puts  his 

slaves  on  the  soil  of  Ohio  with  the  purpose  of  making  them 

free.      It  is  then  true,  that  they  become  free  by  his  act.     The 

eloquent   counsel  for    the  defendant,    in    his  own    work   on^ 

34 


514  APPEALS  IN  EQUITY. 


Willis  vs.  Jolliffe. 


negro  slavery,  (Cobb  on  Negro  Slavery,  chap.  7,  §  154,  1  para- 
graph) states  the  pruiciple  which  applies  to  and  governs  such 
a  case  "  where  there  is  a  change  ,of  domicil  from  a  slave 
holding  to  a  non-slaveholding  nation,  the  animus  remaneiidi 
works  of  itself  ai]d  instanter  [simul  ac  imperii  fines  inlrarunt) 
the  emancipation  of  the  slave."  It  is  true  Mr.  Willis  did  not 
change  his  own  domicil,  althongh  his  last  act  in  life  was 
reaching  the  soil  of  Ohio.  He  intended  to  retnrn,  and  there- 
fore his  own  domicil  was  not  changed,  but  his  act  and  inten- 
tion both  concurred  in  placing  his  slaves,  who  before  were 
mere  chattels  personal,  in  a  country  where  they  assumed  the 
character  of  free  persons.  This  was  making  Ohio  their 
domicil,  and  they  are  there  now  in  the  full  enjoyment  of 
freedom  ivhich  cannot  he  disturbed.  It  seems  to  me,  looked 
at  in  this  plain  way,  that  they  are,  and  were  free  from  the 
moment  when,  by  the  consent  of  their  master,  they  were 
placed  upon  the  soil  of  Ohio  to  be  Uce.  I  have  no  idea  that 
the  soil  of  Ohio  per  se  confers  freedom.  It  is  the  act  of  the 
master  which  has  that  effect.  In  Guillemette  vs.  Harper^  4 
Rich.,  190,  I  stated,  in  1850,  the  principle  which  governs 
this  case.  "If  the  master  carrier  a  slave  to  Great  Britain 
to  set  him  free,  or  while  there  in  any  way  assents  to  his  free- 
dom, there  can  be  no  objection  to  the  validity  of  freedom 
thus  acquired."  I  do  not  understand  that  the  law  of  that 
case,  which  was  the  unanimous  judgment  of  the  Law  Court 
of  Appeals,  has  ever  been  questioned.  In  this  case,  if  the 
facts  be  as  I  now  assume  them  to  be,  that  Elijah  Willis  car- 
ried Amy  and  her  children  to  Ohio  to  set  them  free,  there 
can  be  no  doubt  that  the  moment  they  reached  that  destina- 
tion, they  became  ipso  facto  free. 

To  have  effect  it  needed  no  deed.  It  is  true  Mr.  Jolliffe, 
the  executor,  did,  on  the  25th  of  June,  1R55,  May  term  of  the 
Court  for  Hamilton  County,  execute  a  deed  of  mannmission. 
But  clearly  that  was  unnecessary.  It  might  have  been  well 
enough  to  place  a  record  of  freedom  within  the  constant 
jeach  of  the  parties.     If  it  were  necessary,  I  should  be  dis- 


APPEALS  IN  EaUITY.  515 

Columbia,  May,  1S60. 

posed  to  hold  that  such  a  deed  would  have  relation  back  to 
the  m'omciit  of  arrival.  The  law  of  Ohio,  1841,  chap.  7G,  p. 
591-(>,*  was  brought  to  our  view;  it  requires  blacks  or  inulat- 
toes  entering  into  the  State,  to  give  security  and  to  register 
themselves.  This  does  not  aftect  the  question  of  freedom. 
It  is  a  mere  police  regulation  for  the  internal  government  of 
such  people.  This  great  case  turns  upon  the  narrow  cpies- 
tion:  what  did  Elijah  Wilhs  intend  and  do,  in  going  to  Oliio, 
and  carrying  with  him  Amy  and  her  children  ?  His  purpose 
was  clear;  he  intended  to  free  the  negroes.  This  required, 
according  to  the  testimony  of  experts  in  Ohio,  no  other  act 
than  merely  placing  the  negroes  within  the  territorial  limits 
of  Ohio.  But  if  he  intended  to  do  something  more,  such  as 
buying  land  for  them,  schooling  the  children,  &c.,  I  do  not 
see  how  that  can  alter  the  case.  For  those  acts  were  not  at 
all  essential  to  the  act  of  freedom.  They  are  very  important 
for  the  comfort  of  the  negroes.  When  about  setting  out  from 
home  with  the  negroes,  he  said  to  Reason  Wooliey  "  he  was 
going  to  carry  them  to  Ohio,  to  Cincinnati;  he  said  he  wanted 
to  go  and  carry  them,  and  free  them,  so  they  could  have  the 
ben«'fit  of  his  property.  Sbe,  Amy,  wanted  to  come  back 
with  him;  he  said  to  her  that  when  he  got  her  out  of  South 
Carolina  she  should  never  come  back  again."  To  Mrs.  Ary 
Wooliey,  a  few  weeks  before  leaving  with  the  negroes  he 
stated  his  "object  in  taking  them  off  was  to  carry  them  wlicre 
they  could  be  free,  and  provide  for  them." 

To  John  H.  Howard,  in  March  or  Ajiril,  1855,  he  stated 
"he  had  determined  to  take  them  to  Ohio,  and  free  them 
there."  To  William  Cnllnni  on  the  boat,  the  Jacob  Strader 
he  said,  "he  was  going  to  Ohio,  to  set  them  (the  negroes) 
free,  and  school  the  children."  After  this  array  of  testi- 
motiy,  there  can  be  no  doubt  what  was  his  purpose.  Indeed 
from  what  is  proved  by  other  witnesses,  he  had  long  had  the 

♦These  laws  have  tieen  etilirely  repealed  by  the  Act  of  1819,  which  hns  bt-en 
placetl  in  my  hands  since  the  delivery  of  ihis  opinion.  See  Ads  of  a  general 
nature,  47lh  General  Assembly  of  Ohio,  vol.  17,  page  IS,  sec.  U. 


516  APPEALS  IN  EaUITY. 

Willis  vs.  Jollifie. 

purpose  in  his  mind,  in  some  way  to  accomplish  their  free- 
dom. He  reached  the  wharf  at  Cincinnati,  disembarkecl  him- 
self and  the  negroes,  and  when  about  taking  a  hack  to  the 
hotel,  wiili  them  in  company,  he  fell  and  expired.  Upon  his 
person  was  found  a  duplicate  of  his  will.  I  think  these  facts 
show  that  the  intent  and  the  act  concurred.  He  intended  to 
confer  freedom  on  the  slaves,  he  had  travelled  hundreds  of 
miles  to  consummate  that  intention,  and  had  reached  a  point 
where  they  could  be  free.  What  more  was  to  be  done?  It 
seems  nothing  further  was  legally  required  to  give  freedom  in 
Ohio.  Shall  we  undertake  to  say  otherwise?  Can  we  reach 
a  hand  to  Ohio  and  draw  back  those  people  to  servitude? 
They  are  in  the  enjoyment  of  freedom,  and  we  cannot  and 
ought  not  to  interfere. 

To  allow  them  to  be  free,  and  to  permit  the  devise  in  their 
favor  to  operate,  is,  we  are  told,  contrary  to  the  policy  of  South 
Carolina.  I  know  no  policy,  except  that  which  her  laws  de- 
clare. To  that  I  shall  always  (as  1  have  done  for  thirty-two 
years,  my  judicial  life)  yield  obedience.  But  I  should  feel 
myself  degraded  if,  like  some  in  Ohio  and  other  abolition 
States,  I  trampled  on  law  and  constitution,  in  obedience  to 
popular  will.  There  is  no  law  in  South  Carolina  which,  not- 
withstanding the  freedom  of  Amy  and  her  children,  declares 
that  the  trusts  in  their  favor  are  void.  As  soon  as  they  are 
acknowledged  to  be  free  one  moment  before  the  death  of 
Elijah  Willis,  they  are  capable  to  become  the  cestui  que 
trusts  under  his  will. 

Indeed,  in  one  case  [Bowers  vs.  Newman,  2  McMul.,  659,) 
of  which  we  have  a  very  imperfect  report,  Harf)er,  J.,  and 
myself  held  that  a  slave  could  take  freedom  and  property  by 
the  same  devise. 

It  is  supposed  it  is  necessary  to  ascertain  "  what  was  Elijah 
Willis'  intention  after  he  reached  Ohio,  not  before."  We  can 
only  judge  of  that  by  what  had  occurred  before.  We  know 
what  he  intended  up  to  the  monient  when  he  reached  Cincin- 
nati.    What  did  he  intend  when  the  boat  reached  the  wharf? 


APPEALS  IN  EQUITY.  517 

Colniiibia,  May,  ISGO. 

He  might  possibly  then  have  remained  on  the  boat  with  his 
slaves  and  have  retnrned  to  Sonth  Carolina.  But  he  did  not 
do  that,  he  made  the  act  of  freedom  absolute  by  landing  with- 
in the  territorial  limits  of  Ohio.  This  showed  he  intended  to 
confer  freedom  by  making  Ohio  their  home.  He  had  told 
Amy,  "when  he  got  her  ont  of  Sonth  Carolina  she  should 
never  return."  The  act  made  his  words  good.  For  he  could 
not,  if  he  had  desired  it,  liave  again  reduced  her  to  slavery. 

I  have  not  undertaken  to  review  many  of  the  cases  cited  in 
the  elaborate  decree  of  the  Chancellor,  as  in  the  able  argu- 
ment of  the  case  here.  For  the  case  turned  upon  a  very  tiar- 
row  point;  in  which  the  lights  of  authority  could  only  help 
to  the  general  principle,  that  if  the  act  done  was  in  conse- 
quence of  the  intention  previously  expressed,  it  was  enough 
for  the  case. 

This  has  been  proved  to  be  so  on  a  review  of  the  whole 
law  and  facts,  and  the  result  is,  that  the  woman  Amy,  and 
her  children,  were  free  at  the  death  of  Elijah  Willis,  and  were 
capable  to  becouje  the  cestui  que  trusts  of  the  executor. 

The  Chancellor's  decree  is  reversed,  and  the  bill  dismissed. 

JoHNsToxE,  J. — I  concur  in  the  result. 
Wardlaw,  J.,  dissenting. 

So  far  as  the  views  of  the  Court  were  expressed  orally  in 
consultation,  it  is  understood  lobe  the  opinion  of  the  majority 
that  testator's  taking  Amy  and  other  slaves  to  Ohio,  after  ex- 
l)ressiug  his  intention  to  emancipate  them,  constituted  eman- 
cipalion  of  them.  My  brethren,  I  suppose,  do  not  controvert 
that  which  was  conceded  in  the  argument  of  appellant's 
opening  counsel,  that  testator  contemplated  further  acts  than 
he  performed,  in  cor)summalion  of  his  purpose  of  manumis- 
sion, and  never  at  any  time  entertained  the  opinion  or  design 
that  the  emancipation  of  these  slaves  would,  or  should  be 
complete  by  the  act  of  landing  them  in  Ohio.  In  his  will, 
which  is  his  only  utterance  after  Amy  and  the  other  slaves 


518  APPEALS  IN  EaUITY. 

Willis  vs.  Jollifle. 

reached  Ohio,  albeit  that  utterance  is  by  impHcation  of  law, 
he  describes  Amy  and  her  children  as  his  slaves,  and  directs 
his  executors  to  bring  them  to  Ohio,  and  to  emancipate  and 
set  them  free  in  said  State.  About  the  time  the  will  was  writ- 
ten, in  a  conversation  with  Andrew  H.  Ernst,  one  of  his  exe- 
cutors, Ernst  testifies  that  testator  asked  him  to  be  one  of  his 
executors,  and  that  testator  had  not  then  fully  determined  in 
his  own  mind  what  course  to  take  to  accomplish  his  end.  In 
March  or  April,  185.5,  he  said  to  John  H.  Howard,  "that  as  he 
could  not  do  so  in  this  State,  he  had  determined  to  take  them 
to  Ohio,  and  free  them  there  ;  that  he  had  been  to  Ohio,  and 
had  made  arrangements  to  take  them  to  Cincinnati,"  The 
reference  is  unequivocally  to  his  visit  to  Ohio  at  the  time  of 
the  execution  of  his  will,  and  to  the  arrangements  prescribed 
therein.  Without  this,  it  is  manifest  that  when  he  speaks  of 
taking  them  to  Ohio,  and  freeing  them  there,  he  contemplates 
something  ulterior  to  taking  them  there.  The  connecting  par- 
ticle "  and"  necessarily  has  this  force.  To  the  same  effect  is 
his  declaration  to  William  Cullum,  while  aboard  the  Strader, 
"  he  was  going  to  Ohio  to  set  them  free  and  school  the  chil- 
dren ;  he  was  going  to  buy  them  a  farm."  Of  like  effect  is 
his  declaration  to  Reascn  Woolley,  "  he  was  going  to  carry 
them  to  Ohio,  to  Cincinnati ;  he  wanted  to  go  and  carry  them 
and  free  them,  so  they  could  have  the  benefit  of  his  property; 
he  woidd  come  back  in  three  weeks,  if  he  had  good  luck,  and 
when  became  back  he  would  carry  Gilbert,  (brother  of  Amy,) 
and  free  him."  Ary,  wife  of  Reason  Woolley,  is  more  un- 
qualified in  her  testimony  than  any  other  witness,  and  her 
statement  is,  that  testator  told  her  "  his  object  for  taking  them 
off  was  to  carry  them  where  they  would  be  free,  and  to  pro- 
vide for  them."  It  may  be  reasonably  concluded,  as  Mr. 
Jolliffe  states  in  his  argument,  that  she  referred  to  the  same 
conversations  concerning  which  her  husband  testifies;  but, 
however  this  may  be,  she  means  no  more  in  fair  construction 
of  her  words,  than  that  testator  said  his  object  was  to  take  the 
slaves  to  some  sovereignty  where  they  could  be  set  free,  be 


APPEALS  IN  EaUITY.  519 

Columbia,  May.  18'JO. 

suffered  to  reside,  and  enjoy  the  prf)vision  he  intended  to 
make  for  their  maintenance,  and  it  is  only  by  torture  of  her 
phrases  that  she  can  be  misunderstood  to  denote  testator's 
intention  to  manumit  them  by  the  naked  act  of  carrying  them 
within  the  jurisdiction  of  Oliio.  It  may  be  deduced  from  the 
testimony  of  this  witness,  and  from  the  evidence  as  a  whole, 
that  the  purpose  of  testator,  in  taking  these  slaves  to  Ohio, 
was  merely  part  of  a  system  of  measures,  to  sell  his  pro|)erty 
liere,  to  remove  with  the  jiroceeds  to  a  free-negro  State,  to 
emanci|)ale  these  slaves  there,  to  buy  a  farm  for  them,  and 
educate  the  children.  It  is  unquestionable  that  he  had  for 
years  a  vague  wish  and  intent  to  emancipate  Amy  and  her 
children  ;  but  when  he  went  to  Ohio  this  intent  was  provi- 
sional and  tentative,  to  be  or  not  to  be  executed,  as  experience 
there  might  demonstrate  its  policy  or  its  folly.  From  the 
nature  of  intent,  it  is  revocable  and  inoperative  until  actually 
executed;  the  retraction  of  it  and  the  retention  of  the  right  to 
retract,  or  locus  peui/eiilia?,  have  the  saiue  consequences* 
The  subsistence  of  the  intention  at  the  time  some  act  is  done, 
apparently  in  consummation  of  it,  may  be  sometimes  inferred 
from  |)revious  statements  of  the  intention  to  effect  the  object; 
but  such  previous  declarations  are  always  mere  evidence  of 
the  character  of  the  act,  and  in  any  case  may  be  disbelieved, 
and  are  never  sufficient  and  satisfactory  proof,  where  the  act 
is  equivocal,  if  the  purpose  be  unlawful  and  impolitic,  and 
contrary  to  the  social  and  political  duty  of  the  actor.  The 
legislature  of  this  State,  for  the  citizens  thereof,  enacted,  in 
1820,  that  no  slave  should  be  emancipated  but  by  Act  of  the 
legislature.  The  beginning  of  the  emancipation  supposed 
in  this  case  was  illicit  in  its  origin,  certainly  so  continued  so 
long  as  the  master  and  slaves  had  not  passed  beyond  the 
limits  of  the  State,  and  the  |)resumpii()n,  at  least  in  a  forum 
of  this  State,  is  against  the  completeness  of  emancipation  in 
any  foreign  jurisdiction,  until  the  fact  be  demonstrated  by 
evidence. 

The  case  of  Fri/er  i\^.  Fri/cr,  Rich.  Eq.  Ca,,  92,  illustrates 


520  APPEALS  IN  EaUITY. 


Willis  vs.  JollifTe. 


these  views.  Marriage,  in  this  State,  is  a  civil  contract, 
needing  no  writing  or  other  ceremony  for  its  manifestation; 
indeed,  needing  nothing  bnt  the  agreement  of  the  parties,  in 
good  faith,  to  constitute  the  relation.  A  contract  per  verba 
de present i,sv\c\\  as  "we  marry"  or  "we  are  man  and  wife," 
is  marriage,  and  a  reciprocal  conXVACt  per  verba  de  futiiro, 
such  as  "I  promise  to  marry  you,''  copula  seguenie,  \s  also 
marriage;  lb.,  lio.  In  the  case  cited,  the  couple  agreed  to 
marry,  and  with  that  purpose  went  to  a  magistrate's  house 
to  have  the  ceremony  performed,  but  he  being  from  home, 
tliey  returned  saying,  falsely,  they  had  been  married,  were 
put  to  bed  as  man  and  wife  the  same  night,  and  cohabited 
for  three  years  or  more,  in  the  course  of  which  they  fre- 
quently declared  they  had  been  married  ;  still,  this  was 
pronounced  no  marriage,  principally  for  the  reasons  that,  at 
the  magistrate's  house,  the  parties  looked  to  a  future  celebra- 
tion of  nuptials,  and  did  not  themselves  regard  the  copula  as 
perfecting  the  agreement.  Chancellor  Johnston  says,  p.  97, 
"where  there  was  no  express  stipulation  that  the  copula 
should  perfect  the  previous  executory  agreement,  yet,  if  it  be 
evident  that  the  parties  understood  and  intended  that  act  to 
perfect  it,  I  suppose  it  must  have  that  effect.  But  it  is  of  the 
essence  of  every  contract  that  t\\e  parties  shall  have  a  pres- 
ent contracting  intention,  at  the  time  of  perfecting  their  con- 
tract;  they  must  understand  that  they  are  making  a  contract ; 
otherwise,  i]o  contract  is  made.  I  do  not  say  that  they  must 
have  a  full  understanding  of  the  legal  consequences  of  the 
contract  they  are  forming.  The  contract  once  made,  the 
consequences  are  matter  of  legal  obligation,  and  they  must 
abide  them.  But  where  such  is  the  penalty,  it  is  but  reason- 
able the  parties  shall  not  be  held  to  have  made  a  contract, 
unless  where  they  had  knowledge  that  they  were  contracting 
and  intended  to  contract."  Again,  at  p.  9S,  "where  it  is 
established  that  the  parties  came  together  unlawfully,  their 
continuing  together  must  be  considered  unlawful,  until  they 
show  a  subsequent  marriage."     It  will  not  be  disputed  that 


APPEALS  IN  EaUITY.  521 

Cohsmbia,  May,  1&60. 

emancipation  is  a  contract,  tor,  in  its  most  general  sense,  the 
word  contract  signifies  any  engagement,  obligation  or  com- 
pact, and  this  may  be  unilateral  or  inter  partes.  Broom 
Com.  L.,  257;  1  Pow.,  G.  Now,  applying  the  Chancellor's 
doctrine  to  this  case,  it  is  plain  that  Willis  did  not  intend,  by 
that  act  of  going  ashore  at  Cincinnati,  to  emancipate  Amy, 
and  did  not  know  that  he  was  thereby  perfecting  the  eman- 
cipation. It  was  nrged  that  this  matter  was  settled  by  the 
maxim  utile  per  inutile  non  vitiatnr.  The  nsnal  ap)ilication 
of  this  maxim  is  to  pleading,  and  it  imports  that  mere  snr- 
pliisage,  (where  the  rednndant  matter  may  be  struck  ont 
without  materially  changing  the  general  sense,)  does  not 
vitiate  a  count  or  plea.  So,  in  the  construction  of  deeds  or 
other  writings,  by  foice  of  the  maxim,  immaterial  expressions 
may  be  rejected.  Granting,  however,  that  the  maxim  is  of 
general  application,  and  that  the  converse  of  it  is  equally 
true,  namely,  that  the  omission  of  immaterial  words,  or  acts, 
intended  to  be  expressed  or  done,  does  not  impair  the  effi- 
cacy of  an  act  already  complete;  how  are  we  helped  to  a 
conclusion  by  the  announcement  of  a  proposition  having  no 
operation,  except  on  assumption  of  the  point  in  dispute?  It 
is  the  precise  issue  of  the  case  whether  the  act  of  Willis  was 
complete,  to  be  determined  by  concession  in  a  South  Carolina 
Court,  as  to  property  here,  by  the  law  of  the  State.  It  may  be 
conceded  that,  in  ordinary  contracts,  not  inhibited  nor  re- 
stricted by  any  law  of  the  State,  mere  ignorance  of  the  law 
as  to  the  necessary  formalities,  even  if  it  consist  in  the  belief 
that  something  supertluous  is  demanded  by  law,  will  not 
invalidate  a  contract  actually  fulfilling  all  legal  requirements. 
Thus,  a  will  attested  by  three  witnesses,  would  be  valid, 
although  testator  supposed  four  witnesses  were  required,  and 
intended  to  procure  a  fourth.  An  illustration  of  this  princi- 
ple, suggested  by  counsel,  seems  to  have  been  very  ellectivo 
with  a  portion  of  the  Court.  Suppose,  it  was  said,  a  slave 
should  be  sold  by  one  citizen  of  the  State  to  another,  and  the 
price  was  paid,  and  llie  slave  was  delivered,  and  the  parties 


523  APPEALS  IN  EaUITY. 

Willis  vs.  Jolliffe. 

should  igiiorantly  believe  that  a  bill  of  sale  was  indispensa- 
ble, and  agree  to  meet  the  next  morning  to  give  and  receive 
such  bill  of  sale,  bnt  the  death  of  one  of  them,  or  some  other 
impediment,  prevented  the  execution  of  it,  would  such  igno- 
rance or  mistake  invalidate  a  sale  already  complete  ?  Cer- 
tainly not;  for,  in  such  case,  neither  universal  law  nor  local 
law  required  a  bill  of  sale;  bnt  suppose,  to  make  the  case 
put  analogous  to  that  in  hand,  the  local  law  did  require  a 
bill  of  sale,  then  payment  of  the  price,  and  delivery  of  the 
chattel,  would  not  make  a  sale,  however  cimmerian  may 
have  been  the  ignorance  of  the  jiarties. 

Much  learned  argument  was  employed  to  enforce  the 
uncontested  proposition,  that  by  the  law  of  nations,  in  the 
absence  of  local  prohibition,  a  master  may  manumit  his  slave 
by  any  act  or  declaration  which  manifests  his  purpose  to 
extinguish  or  throw  off  his  dominion.  But  a  State  may  regu- 
late, to  any  extent,  the  relation  of  master  and  slave,  as  to  its 
existence  and  dissolution;  fi)r  example,  might  inhibit  the 
removal  of  a  slave  from  the  district  in  which  he  was  born, 
or  his  manumission  in  any  place.  In  South  Carolina  we 
have  such  local  prohibition.  The  Act  of  1820  declares  that 
no  slave  shall  be  hereafter  emancipated  but  by  Act  of  the 
legislature,  and  the  Act  of  184 1  declares  null  and  void  any 
gift  of  a  slave,  by  any  mode  of  conveyance,  with  a  view  to 
emancipation,  and  any  devise  or  bequest  to  a  slave,  wher- 
ever he  may  be,  or  more  exactly  according  to  book,  without 
any  limitation  as  to  the  existence  of  the  slave  within  the 
State.  There  may  be  some  misapprehension  or  confusion  as 
to  the  extra  territorial  vigor  of  general  laws  of  a  State  ;  but 
the  fulness  of  occupation  of  my  time  does  not  permit  me 
now  to  discuss  this  topic  extensively.  Briefly  and  generally, 
my  opinion  is,  that  a  State,  by  its  legislation,  may  control 
the  contracts  and  acts  of  its  citizens,  wherever  they  may 
be,  so  long  as  they  acknowledge  their  allegiance;  although 
in  just  construction,  general  provisions,  where  there  is  no 
express    extension,  should   not    be    held    to   include   foreign 


APPEALS  IN  EaUlTY.  523 

Columbia.  May,  ISGO. 

acts.  According  to  thn  common  law  of  England,  and,  as 
English  text- writers  say,  according  to  universal  law,  no 
native  snbject  or  citizen  of  one  sovereign,  without  the 
concurrence  of  such  sovereign,  can  divest  himself  of  his 
natural,  primitive,  and  intrinsic  allegiance,  by  any  act  of 
his  own — even  by  swearing  allegiance  to  another  sover- 
eign. Broom's  Leg.  Max.,  33.  Denial  of  the  right  of  expatri- 
ation does  not  include  denial  of  the  right  to  change  one's 
domicil  ;  but  no  respectable  publicist  lias  ever  maintained 
that  a  slave  could  have  domicil,  at  least  a  separate  domicil 
from  his  master's.  It  is  enough  for  present  purposes  to  adopt 
the  opinion  of  Judge  Story,  no  extravagant  friend  of  the 
rights  of  the  separate  States  of  the  Union,  as  expressed  in 
Van  Reimsdyck  vs.  Kane,  Gallison,  377:  "  Every  State  has, 
within  its  own  sovereignty,  an  authority  to  bind  its  citizens 
everywhere,  so  long  as  they  continue  their  allegiance.  Unless, 
therefore,  it  be  restrained  by  constitutional  prohibitions,  it 
may  act  upon  the  contracts  made  between  its  own  citizens  in 
everv  country,  and,  consequently,  may  discharge  them  by 
general  laws.  But  such  is  not  the  operation  of  jurisdiction 
on  contracts  made  by  a  citizen  with  a  foreigner,  in  a  foreign 
couiiiry.  If,  in  such  case,  the  legislature,  by  positive  laws, 
nullify  such  contracts,  it  is  certain  they  cannot  be  enforced 
within  its  own  tribunals,  but  elsewhere  they  remain  with  the 
original  validity,  which  they  had  by  the  lex  loci  contractus. 
But  if  a  statute  be  general,  without  a  direct  applicati«)n  to 
foreign  contracts,  the  rule  approved  by  Casare^is,  seems 
proper  to  be  adopted,  that  its  construction  shall  not  be 
extended  to  such  contracts.  Ratio  est  (piia  statutum  int di- 
git semper  disponere  de  contractihnsfactis  intra  et  tion  extra 
terrilorium  suumy  Now,  certainly,  Willis,  at  his  death, 
was  a  citizen  of  South  Carolina,  and  Amy  no  foreigner,  and 
as  the  State,  having  nullified  for  its  citizens  the  right  of  a 
master  to  enjancipate  a  slave,  her  tribunals  must  enforce  the 
inhibition  as  to  property  within  her  limits.  It  n)ay  be  that, 
in  our  condition  as  a  Confederate  State,  we  can  send  no  force 


524  APPEALS  IN  EQUITY. 


Willis  vs.  Jolliffe. 


to  Ohio  to  capture  Amy,  nor  if  Willis  were  living,  and  abided 
beyond  the  limits  of  the  State,  conld  we  send  any  force  to 
bring  him  witliin  the  jurisdiction  ;  but  wfien  the  person  or 
the  subject,  a  representative  of  Willis  or  his  property,  becomes 
amenable  to  our  jurisdiction,  we  must  enforce  South  Carolina 
law  and  policy.  It  would  hardly  be  contended  that  a  citizen 
of  this  State  could  give  an  estate  to  a  slave  in  Georgia. 

If  the  law  of  Ohio,  a  State  so  oblivious  of  the  comity  due 
to  her  confederates,  could  control  this  controversy,  the  result 
of  this  litigation  would  still  be  donbtfnl.  It  is  true  that  her 
Constitution  excludes  involuntary  servitude,  except  for  crime, 
without  any  saving  as  to  travellers,  sojourners,  or  fngitive 
slaves.  But  in  some  of  her  statutes,  as  to  slaves,  conscien- 
tious professions  are  made.  Thus  it  may  be  mentioned,  as  a 
matter  more  curious  than  relevant,  in  the  preamble  of  a  stat- 
ute relating  to  fugitives  from  labor  or  service  from  other 
States,  passed  in  1839,  the  second  section  of  the  fonrth  arti- 
cle of  the  Federal  Constitution  is  incorporated,  and  it  is  set 
forth:  whereas,  it  is  the  duty  of  those  who  reap  the  largest 
measure  of  benefits  conferred  by  the  Constitution,  to  recog- 
nize to  tiieir  full  extent  the  obligations  which  that  instrnment 
imposes;  and  whereas,  it  is  the  deliberate  conviction  of  this 
General  Assembly  that  the  Constitution  can  only  be  sus- 
tained, as  it  was  framed,  by  a  spirit  of  just  compromise, 
therefore  it  is  enacted,  among  other  things,  that  all  otiicers 
proceeding  under  the  Act,  shall  recognize,  without  proof,  the 
existence  of  slavery  in  the  States  of  the  Utiion  in  which  it 
exists.  Stat,  of  Ohio,  595,  599.  By  an  Act  passed  in  1804, 
it  is  enacted  that  after  Jnne  I,  then  next,  no  black  or  mulatto 
person  shall  he  permitted  to  settle  or  reside  in  Ohio,  unless 
he  or  she  shall  first  produce  a  fair  certificate  from  some  Court 
within  the  United  States,  of  his  or  her  actual  freedom,  and 
that  such  persons  there  residing  shall  register  themselves,  &c. 
Stat.  Ohio,  592.  And  by  an  Act  in  1807,  lb.,  593,  no  negro 
or  mulatto  shall  be  permitted  to  emigrate  into  and  settle 
witliin  the  State  without  giving  bond,  &c.     No  special  con- 


APPEALS  IN  EQUITY.  525 


Columbia,  May,  lb60. 


struction  of  those  statutes  will  be  attempted,  but  it  may  be 
pertinently  asked,  how  could  Amy,  forbidden  to  emigrate  to 
Ohio  and  settle  ther(%  acquire  domicil  and  freedom  by  unlaw- 
fully going  tiiither?  We  may  understatid  from  the  provi- 
sions of  these  statutes,  how  Willis,  under  advice,  supposed 
he  must  do  something  towards  the  emancipation  ot  Amy 
after  he  reached  Ohio,  and  why  the  executor  executed  the 
deeds  of  emancipation. 

It  is  plain  that  some  of  the  views  thus  presented  hurriedly, 
are  contrary  to  the  opinions  announced  in  Frazier  vs.  Fra- 
zier.    The  proprieties  of  my  position  prevent  me  from  the  full 
expression  of  my  aversion  to  the  doctrines  of  that  case;  but 
I   may  say,  respectfully,  that  it  cannot  be  regarded  as  a  case 
of  high  authority.      It  overruled  the  case  of  Byniiyn  vs.  Bos- 
tick,  4  DeS.,  266,  which,  for  many  years,  had  prevailed  as  the 
law  of  the  State.     It  was  decided  by  two  Judges,  very  emi- 
nent men,  entitled  to  the  esteem  and  regard  of  all  our  people, 
and  always  receiving  my  own,  against  two  Judges,  one   of 
whom    is  the  father  of   Equity  in   South   Carolina,  and   the 
other  a  Judge  unequalled  witli  us  in  genius,  juridical  learn- 
ing, and  extent  of  reputation  as  a  jurist.     It  was  followed  in 
the  same  year  by  the  disorganization  of  the  Court  which  pro- 
nounced  it,  and,  as  many  believe,  served,  to  some  extent,  to 
produce  this  disorganization.     Its  prominent  result  was  expli- 
citly annulled,  as  a  general  consequence  in  similar  cases,  by 
the  Act  of  1S41.     It  has  never  been  directly  approved  in  any 
subsequent  judgment    which    is    reported.     We    have    been 
referred  to  the  cases  of  Fhiley  vs.  Hunter,  2  Strob.,  214,  and 
Gordon  vs.  Blackman,  2  Strob.,  45,  1  Rich.,  64,  as  compurga- 
tors  of  its  doctrines.      In    the    former    of   these,  Chancellor 
Jolinston  said,  in    the  circuit  decree:   I   am   bound    by  Fra- 
zier vs.  Frazier,  however  much    I   doubt  its  correctness,  and 
in   the  appeal   decree,  it  is  said  that  the  object  of  tlie  Act  of 
1841  was  to  defeat  every  effort  to  evade  the  Act  of  1S20.     In 
the   latter  case,  the   Chancellor   on    circuit  said  :    Frazier  vs. 
Frazier  covers  the   whole  ground.      I   am   hedged   in   on  all 


526  APPEALS  IN  EaUITY. 

Willis  vs.  JolliflTe. 

sides,  and  must  submit  here,  that  is,  on  circuit,  and  clearly 
implying  dissatisfaction;  and  the  Court  of  Appeals  men- 
tioned the  doctrine  of  the  case  as  a  historical  fact,  and  with- 
out approval,  saying  the  Court  decided  in  Frazier  vs.  Frazier, 
it  would  not  interfere  to  prevent  the  execution  of  such  a 
triist,  while  there  was  no  law  to  forbid  it;  and  then  proceeded 
to  give  retrospective  effect  to  the  Act  of  1841.  In  this  very 
case,  on  the  issue  of  probate,  10  Rich.,  186,  Judge  Withers, 
organ  of  the  Court,  puts  the  matter  adjudged  in  Frazier  vs. 
Frazier,  conditionally,  "if  it  be  law,"  &c.  On  the  whole,  in 
reference  to  Willis,  I  must  adopt  the  language  of  one  of  the 
characters  of  Shakspeare,  and  his  legal  acquirements  have 
been  elaborately  vindicated  by  the  Lord  Chancellor  of  Great 
Britain,  lately  Chief  Justice  of  the  King's  Bench  : 

"  His  act  did  not  o'ertake  his  bad  intent. 
And  must  be  buried  but  as  an  intent 
That  perished  by  the  way;   thoughts  are  no  subjects, 
Intents  but  merely  thoughts." 

My  brethren  seem  more  inclined  to  adopt  the  extravagance 
of  the  Irish  orator,  which  revolts  most  men  of  sober  mind 
and  correct  taste,  and  to  declare  as  the  law  of  South  Caro- 
lina :  "The  first  moment  a  slave  touches  the  sacred  soil  of 
Britain  (or  Ohio)  the  altar  and  the  god  sink  together  in  the 
dust;  his  soul  walks  abroad  in  her  own  majesty;  his  body 
swells  beyond  the  measure  of  his  chains  that  burst  from 
around  him;  and  he  stands  redeemed,  regenerated,  and  dis- 
enthralled by  the  irresistible  genius  of  universal  emancipa- 
tion." 

Decree  reversed. 


APPEALS  IN  EaUITY.  537 


Columbia,  May,  1S60. 


Thomas  Wilson  vs.  William  S.  McJunkin,  and  others. 
JVills  and  Testaments — Limitation  of  Estates. 

The  testator  devised  real  and  personal  estate  to  his  executors  in  trust,  for  the 
sole  and  separate  use  of  his  daughter  N..  "  for  and  during  the  tf  rm  of  her 
natural  life,  and  at  her  death  to  he  equally  divided  amonjrst  her  chiliiren  in  fee 
simple."  N.  had  eight  children  living  at  the  death  of  the  testator,  one  of  whom 
died  in  the  liletinie  of  N.,  leaving  a  hushand,  but  no  issue,  surviving  her: — 
JMrl^  that  the  eight  children  took  vested  interests,  and  that  the  representative 
of  the  one  who  died  in  the  lifetime  o(   N.  was  entitled  to  her  share. 

BEFORE  DARGAN,  CII.,  AT  UNION,  JUNE,  1S58. 

The  circuit  decree,  which  states  the  whole  case,  is  as  fol- 
lows : 

DarCxAN,  Ch.  William  Sartor,  by  his  last  will  and  testa- 
ment, devised  and  bequeathed  certain  real  and  personal 
estates,  described  in  the  plaintiff's  bill,  to  his  executors,  in 
trust  for  the  sole  and  separate  use  of  his  daughter,  Nancy 
McJunkin,  wife  of  Joseph  ISIcJunkin,  for  and  during  the 
term  of  her  natural  life,  and,  at  her  death,  to  be  equally 
divided  amongst  her  children  in  fee  simple.  The  property 
thus  given  consisted  of  a  tract  of  land,  whereon  the  ."^aid 
Joseph  McJunkin  lived  at  the  date  of  the  will,  and  two 
negroes,  Joe  and  Dinah,  and  also  sundry  executions  against 
the  Slid  Joseph  McJunkin,  atid  various  choses  in  action, 
which  the  testator  held  against  him,  which  he  directed  to  be 
collected  or  to  be  appropriated  in  the  purchase  of  negroes 
from  McJunkin,  to  be  held  in  the  same  irnsi.s.  The  negroes 
were  accf)rdingly  j)urchased  with  the  fund  thus  designated  ; 
Nancy  McJunkin  was  permilted  by  the  trustees  to  possess 
and  enjoy  the  real  and  [)ersonal  estate  during  her  life,  aecord- 
ing  to  the  scheme  of  the  trtist.     Nancy  McJunkin  died  15ih 


528  APPEALS  IN  EaUlTY. 

Wilson  vs.  MeJuiikiii. 

of  January,  A.  D.  1856,  leaving  surviving  her,  children  as 
follows,  viz:  Emeline  Wilson,  wife  of  William  Wilson, 
Frances    Davis,  wife  of  P.  A.  Davis,  Amanda  Fant,  wife  of 

David   A.    Fant,  Sarah   J.   Thomas,   wife  of Thomas, 

William  S.  McJimkin,  Robert  D.  McJunkin,  and  Harriet 
McJunkin,  who  has  since  intermarried  with  William  Jeter. 

At  the  death  of  the  testator,  Nancy  McJunkin,  the  tenant 
for  life,  had  another  child,  Mary  McJunkin,  who,  A.  D.  1840, 
intermarried  with  the  plaintiff,  Thomas  Wilson,  and  who 
gave  birth  to  a  child  who  died  in  the  life  of  the  mother 
(almost  immediately  on  its  birth.)  The  said  Mary  McJnnkin, 
afterwards  Wilson,  predeceased  her  mother  the  tenant  for  life, 
Nancy  McJunkin.  She  died  in  1S45.  Joseph  McJunkin, 
tiie  father,  survived  Mary — he  died  A.  D.  1855. 

At  the  death  of  the  tenant  for  life,  the  estate  to  be  divided 
among  the  remaindermen,  her  children,  consisted  of  the  tract 
of  land  aforesaid,  and  thirty-seven  negroes,  which  negroes 
were  valued  at  |25,008   25. 

Oil  the  22d  February,  1S56,  William  S.  McJunkin,  Robert 
D.  McJunkin,  P.  A.  Davis  and  wife,  Sarah  J.  Thomas,  who 
has  since  intermarried  with  John  Fant,  David  J.  Fant  and 
wife,  Harriet  McJnnkin,  who  has  since  intermarried  with 
William  Jeter,  and  William  Wilson,  made  a  partition  of  the 
negroes  among  themselves. 

On  the  2Sth  April,  1856,  a  bill  was  filed  for  the  purpose  of 
effecting  a  division  among  the  same  parties  of  the  real  estate, 
and  also  to  confirm  the  informal  division  of  the  negroes, 
made  on  the  22d  February,  1856.  The  land  was  ordered  to 
be  sold  for  division,  and  a  decree  was  rendered  confirming 
the  said  informal  division  of  the  negroes.  A  sale  of  the  land 
was  made  in  November,  1856,  and  confirmed  at  June  term, 
1857. 

The  plaintiff,  Thomas  Wilson,  was  not  a  party  to  the  pri- 
vate partition  among  the  parties,  nor  was  he  a  party  to  the 
proceedings  by  which  that  partition  was  confirmed,  and  by 
which  the  land  was  sold  for  partition.     He  claims  that  his 


APPEALS  IN  EQUITY.  529 

Columbia,  May,  IStiO. 

wife,  Mary,  took  a  vested  interest,  by  way  of  remainder,  in 
the  estate  of  which  Nancy  Mc.Tunkin  was  tenant  for  life, 
which  was  transn)issible  to  her  representatives,  and  that  he, 
as  her  husband  and  distributee,  was  entitled  to  the  ono-lialf 
part  of  the  share  to  which  she  wonhl  have  been  entitled  if 
she  had  been  HvMng  at  the  period  of  parlilion. 

This  claim  of  the  plainlitF  is  resisted  by  the  defendants  on 
two  grounds;  the  first  of  which  is,  that  Mary,  the  wife  of  the 
plaintiff,  took  no  vested  estate  or  interest  under  the  will  of 
her  grand-father,  William  Sartor.  Tlie  question  thus  raised 
for  the  decision  of  the  Court  I  had  thought  so  well  settled  as 
not  to  admit  of  controversy  or  serious  doubt;  so  plain  is  it, 
in  fact,  tliat  it  does  not,  so  far  as  I  am  informed,  seem  to  have 
been  raised  in  any  reported  decision  in  South  Carolina.  But 
when  we  turn  to  the  English  autliorities,  we  find  the  prin- 
ciple so  well  settled  as  to  account  for  the  question  not  having 
been  raised  in  our  Courts. 

The  defendants  contend  that  the  remainder  to  the  children 
of  Nancy  McJunkin,  after  her  decease,  was  contingent, 
because  it  was  not  certain  that  they  would  be  living  at  that 
period,  while,  in  the  meantime,  other  children  might  have 
been  born  to  participate  with  the  ante  Jiati,  to  the  diminu- 
tion of  their  respective  shares.  It  will  be  remembered  that 
Mary,  the  plaintiff's  deceased  wife,  was  born  at  the  death  of 
the  testator,  and  there  was  no  child  of  Nancy  McJunkin 
born  alter  the  date  of  the  will.  The  gift  is  to  Nancy 
McJunkin  during  her  life,  and  at  her  death  to  be  equally 
divided  among  her  children  in  fee  simple.  Fearne,  1  vol.  p.  9, 
classifies  contingent  remainders  into  four  kinds.  His  fonrlh 
class  of  contingent  remainders  he  defines  "where  a  remain- 
der is  limited  to  a  person  not  ascertained,  or  not  in  being  at 
the  time  when  such  limitation  is  made."  In  this  instance 
Mary  McJunkin  was  in  being,  and  was  ascertained  at  the 
time  when  the  limitation  was  made.  The  facts  satisfy  the 
requisiiinn  of  this  rule  to  its  fullest  extent. 

The  t:»ct  that  children  subsequently  born   might  come  iii' 
35 


mo  APPEALS  IN  EaUlTY. 

Wilson  vs.  MeJuiikin. 

and  participate,  does  not,  cannot  affect  the  right  of  children 
171  esse  at  the  creation  of  the  limitation  to  take  an  esla/e,  but 
merely  disturbs  the  rights  as  to  the  quantity  which  they 
would  be  entitled  to  take.  The  quantity  of  their  interest 
only,  and  not  their  estate,  is  contingent.  In  this  case  the 
question  relates  to  a  child  who  was  in  existence  at  the  crea- 
tion of  the  remainder.  But  it  is  equally  well  settled  that 
where  an  estate  is  given  to  one  for  life,  and  after  his  death  to 
his  children  ;  that  children  born  after  the  creation  of  the 
limitation  will  come  in  equally  with  those  born  before,  and 
that  the  estates  of  those  born  subsequently  become  vested 
interests  eo  instanti  upon  their  birth.  This,  it  must  in  can- 
dor be  admitted,  does  not  conform  literally  with  Mr.  Fearne's 
definition,  that  a  remainder  is  contingent  when  limited  to  a 
person  not  ascertained  or  not  in  being  at  the  time  when  such 
limitation  is  made.  But  it  is  not  inconsistent  with  the 
rationale  of  any  rule  upon  the  subject,  and  it  is  productive 
of  no  evil  consequences  to  hold,  that  in  such  a  case  the 
children  in  esse  shall  take  vested  estates  for  themselves,  and 
for  those  who  may  afterwards  be  born  and  come  within  the 
description  of  those  who  may  be  entitled  to  take.  As  soon 
as  the  estate  is  created,  it  vests  (the  whole  of  it)  in  the  then 
existing  remaindermen,  and  as  soon  as  another  child  is  born 
his  equal  and  undivided  share  vests  in  him  as  in  the  others 
previously  born:  so  that  there  is  never  at  any  time  any  por- 
tion of  the  estate  not  vested  or  contingent  as  to  an  existing 
proprietor.  The  Courts  are  said  to  have  ^^ateanitig"  in 
favor  of  construing  estates  to  be  vested,  rather  than  contin- 
gent— the  meaning  of  which  is,  that  tlie  policy  of  the  law 
which  is  always  supposed  to  be  based  upon  the  best  interest 
of  society,  favors  the  vesting  of  estates.  Though  contingent 
estates  must  necessarily  exist,  and  are  essential  to  the  wants 
of  society  and  civilization,  it  is  always  better,  so  far  as  is 
practicable  and  consistent  with  these  demands  of  society, 
that  every  estate  should   have  an  existing  and  ascertained 


APPEALS  IN  EQUITY.  WI 

Columbia,  May,  15360. 

propriett)r.  Hence,  the  law  favors  that  construction  which 
holds  estates  to  be  vested. 

In  the  particular  class  of  cases  which  I  am  considering, 
there  is  another  and  a  special  reason  why  the  estates  of  even 
the  after-born  children  should  vest  upon  their  birth.  In  Doe 
vs.  Pcrryti,  3  T.  R.,  484,495,  Buller,  J.,  holds  the  following 
language:  The  Courts  of  Law  "have  said  that  the  estate 
shall  vest  on  the  birth  of  a  child,  and  without  waiting  for 
the  death  of  the  parents;  which  rule  is  not  attended  with 
any  inconvenience  to  tlie  children,  because  where  the  estate 
is  limited  to  a  nuuiber  of  children,  it  shall  vest  in  the  first, 
and  afterwards  open  for  the  benefit  of  those  who  shall  be 
born  at  a  subsequent  period.  But  if  this  were  held  not  to 
vest  till  the  death  of  the  parent,  this  inconvenience  would 
fi>llow:  that  it  would  not  go  to  grand-children.  For,  if  a 
child  were  born  who  died  in  the  lifetime  of  their  parents, 
leaving  issue,  such  grand-children  could  not  take;  which 
could  not  be  supposed  to  be  the  intention  of  tlie  devisor." 
By  the  other  Judges  who  sat  in  the  case,  Ashhurst,  J.,  and 
the  Chief  Justice  (Lord  Kenyon),  this  principle  was  assumed 
to  be  well  settled  at  that  time. 

Since  that  time,  (A.  D.  1789,)  the  principle  that  the  shares 
of  the  after-born  remainderiuen  shall  vest  at  their  births, 
respectively,  has  been  frequently  recognized,  and,  so  far  as  I 
know,  has  never  been  departed  from  or  questioned.  In  4 
Kent  Com.,  197,  it  is  laid  down  in  the  following  language: 
"  When  a  remainder  is  limited  to  the  use  of  several  persons 
who  do  not  become  capable  at  the  same  time,  as  a  devise  to 
A  for  life  remainder  to  his  children,  the  children  living  at  the 
death  of  the  testator  lake  vested  reu)ainders,  subject  to  be 
disturbed  by  after-born  children.  The  remainder  vests  in 
the  persons  first  becoming  capable,  and  the  estate  o|)ens  and 
becomes  divested  in  quantity  by  the  birth  of  SMbseipient 
children,  who  are  let  in  to  take  vested  proportions  of  the 
estate."  This  lucid  abstract  of  the  learned  commentator  is 
amply  supported  by  his  numerous  authorities. 


5:i2  APPEALS  IN  EaUITY. 

Wilson  vx.  McJunkin. 

The  defendants  further  contend  that  the  plaintiff,  if  ever 
he  was  entitled  to  any  part  of  the  estate,  has  waived  and 
released  the  same.  They  do  not  pretend  that  he  has  actually 
and  formally  done  this,  but  that  the  circumstances  and  facts 
raise  the  implication. 

I  will  mention  the  facts  wl)ich  they  think  amount  to  a 
waiver  or  a  release  on  the  part  of  the  plaintiff.  They  say  he 
was  aware  of  the  proceedings  in  this  Court  for  a  confirma- 
tion of  the  private  division,  and  for  a  sale  of  the  land  and 
division  of  the  proceeds.  They  offered  no  proof  of  notice 
of  this  fact,  but  infer  it  from  the  circumstances,  that  he  at 
the  time  was  a  resident  of  Columbia  or  Lexington,  and  that 
the  sale  of  the  land  was  advertised  in  the  Uniouville  Jour- 
nal. These  are  all  the  facts  on  which  they  ground  their 
presumption,  that  the  plaintiff  had  notice  of  the  judicial 
proceedings.  If  he  had  had  express  notice,  I  do  not  see  how 
that  could  have  affected  his  rights,  except  so  far,  perhaps,  as 
to  have  estopped  him  from  questioning  the  title  of  the  pur- 
chaser of  the  land.  If  he  had  stood  by  and  seen  the  land 
sold  to  another,  without  interposing  an  objectiorj,  the  pur- 
chaser might  have  complained.  But,  suffering  the  title  of 
the  purchaser  to  stand  unimpeach(?d,  what  should  prevent 
him  from  setting  up  a  claim  to  his  proper  share  of  the  pro- 
ceeds of  the  sale  of  the  land  ? 

Tbe  defendants  also  adduced  in  evidence  a  letter  of  the 
plaintiff  to  his  brother,  William  Wilson,  to  show  a  surrender 
of  his  interest.  The  letter  is  a  private  and  coiifidential  com- 
munication to  his  brother.  The  strongest  expressions  in  the 
letter,  bearing  on  this  point,  are  those  in  which  he  says  he 
had  heard  of  the  division  of  the  effects,  '■'■I  do  think^^''  he 
says,  "  I  should  be  entitled  to  the  household  effects  which 
Mary  (his  wife)  had  when  she  died.  As  for  the  bed  and  fur- 
niture, she  made  them  with  her  own  hands;  and  as  for  the 
other  furniture,  her  mother  made  it  and  gave  it  to  her.  I  do 
not  wish  them  to  use  myself,  nor  would  I  have  it.  I  want 
your  children   to   have  it,  &c."     He  further  says:   "I    have 


APPEALS  IN  EaUlTY.  5:W 

Columbia.  May,  18(10. 

been  advised  to  commence  suit  for  an  e(]nal  share  as  one 
of  ilie  legatees;  I  do  not  intend  to  do  so.  If  1  had  every- 
tliins,  and  conld  settle  it  on  yonr  children,  withont  its  coming 
into  my  hands,  I  wonid  do  so.  I  am  hard  rnn,  and  very  far 
from  being  independent,  thongh  I  do  not  and  never  did  wish 
to  live  on  n)y  dear  wife's  property,  thongh  I  believe  it  wonId 
have  been  her  wish  for  me  to  liave  what  was  hers;  thongh 
in  my  present  situation  I  do  not  desire  it,  only  in  the  way  I 
have  stated.  Please  send  me  a  copy  of  the  will  and  keep 
this  a  secret,  as  yon  will  be  benefitted  if  anything  comes." 

Farther  on,  he  says  :  "  As  regards  D.  Fant,  (who  had  mar- 
ried one  of  the  parties  entitled,)  I  do  not  want  him  to  have 
one  cent  which  shonld  have  been  poor  Mary's.  He  was  the 
man  who  refnscd  to  iielp  her  at  his  own  tal)le,  after  being 
invited  by  her  sister.  He  is  nnworthy  to  be  called  man. 
My  l)lood  boils  whenever  I  think  of  it  now;  to  think  he,  a 
brute,  shonld  exult  on  what  should  \ia.vo,  been  hers." 

This  letter  the  defendants  rely  on  as  a  release  from  the 
plaintiff  to  the  defendants,  and  D.  Fant  among  them.  It  is 
evidently  written  in  ignorance  of  the  plaintiff''s  rights,  in  a 
spirit  of  discontent  of  what  lie  believes  would  be  the  inevit- 
able result,  and  manifests  anything  but  a  disposition  to  con- 
cede anything  which  he  believed  to  be  his,  and  which  the 
law  would  give  him.  This  is  what  the  defendants  call  a 
release ! 

If  he  had  said  to  the  defendatits  in  so  many  words,  that 
lie  would  release  to  them  all  his  interest  and  share,  it  would 
not  have  bound  him.  It  would  have  been  without  consid- 
eraiion,  and  wantitig  in  an  essential  form. 

The  plaintilf  was  and  is  entitled  to  the  one-half  part  of  the 
share  of  his  wife  in  the  said  estate  held  by  Nancy  McJnnkin 
for  life,  with  remainder  to  her  children  in  fee.  Noihintr 
has  happened  which  can  have  the  effect  of  divesting  him  of 
his  rights.  The  children  of  Mrs.  McJnnkin  were  as  follows: 
1,  Emeline,  wife  of  William  Wilson  ;  2,  F^rancis;  3,  Amanda; 
4,  Sarah  ;    5,   Harriet;    6,    W.    S.    McJnnkin;    7,    Robert    I). 


534  APPEALS  IN  EQUITY. 

Wilson  v-i.  McJiinkin. 

McJiinkin  ;  and  8,  Mary  Wilson,  deceased,  the  plaintiff's 
wife.  These  were  the  remaindermen  with  vested  estates  in 
common,  being  eight  in  number.  The  share  of  the  plaintiff's 
deceased  wife  was  then  one-eighth  of  the  whole.  The  plain- 
tiff, as  her  hushand  and  distributee,  is  entitled  to  the  one-half 
part  of  her  estate.  The  other  half  is  distributable  between 
her  father,  now  deceased,  and  her  brothers  and  sisters.  The 
plaintift^'s  share  is  a  sixteenth  of  the  whole  estate.  Jt  is  so 
ordered  and  decreed.  I  do  not  know  whether  the  proceeds 
of  the  sale  of  the  land  have  been  collected  and  paid  over. 
If  they  have  not,  it  is  ordered  and  decreed  that  the  commis- 
sioner do  pay  to  the  plaintiff  the  one-sixteenth  part  of  the 
net  proceeds  of  the  sale  of  the  said  land,  and  of  the  inter- 
est that  has  accrued  thereon.  If  the  proceeds  of  the  sale  of 
the  land  have  been  collected  and  paid  over  to  the  other 
remaindermen,  it  is  ordered  and  decreed  that  the  commis- 
sioner state  an  account,  with  each  of  the  other  remainder- 
men, for  tlie  purpose  of  ascertaining  how  much  each  party 
must  contribute  to  the  plaintiff'  to  make  his  share  equal,  and 
that  each  party  pay  to  the  plaintiff  his  or  her  proportionate 
share,  and  the  interest  thereon,  from  the  time  he  received  it, 
to  make  the  plaintiff's  share  equal. 

It  is  further  ordered  and  decreed,  that  a  writ  of  partition  do 
issue  for  the  purpose  of  re-dividing  the  personal  estate,  so 
held  by  Nancy  McJunkin  for  life,  with  remainder  to  her 
children.  In  such  division,  it  is  ordered  that  the  commis- 
sioners assign  and  allot  to  the  plaintiff,  Thomas  Wilson,  one- 
sixteenth  part  of  the  whole,  and  that  as  to  the  rest  of  the  said 
personal  estate,  and  the  other  remaindermen,  tliey,  the  com- 
missioners, conform  as  near  as  may  be  practicable  with  the 
former  division. 

It  is  further  ordered  and  decreed,  that  the  commissioner  in 
equity  state  an  account  of  profits  of  the  negroes,  &c.,  which 
have  been  in  possession  of  the  defendants,  and  that  the 
plaintiff  do  receive  the  one-sixteenth  part  of  the  said  profits 
from  the  time  that  the  said  defendants  have  been  in  posses- 


APPEALS  IN  EaUITY.  635 

Columbia,  May,  1800. 

sion  of  the  said  personal  estate,  or  in  the  enjoyment  of  the 
profits  thereof. 

It  is  further  ordered  and  decreed,  that  each  party,  plaintid 
and  defendant,  pay  an  equal  part  of  the  costs  of  these  pro- 
ceedings. 

The  defendants  appealed  on  the  grounds  : 

1.  Because  his  Honor  erred,  it  is  respectfully  submitted,  in 
holding  that  Mary  Wilson,  wife  of  Thomas  Wilson,  took  a 
vested  interest  under  the  will  of  Thomas  Sartor,  transmissible 
to  her  representatives, 

2.  Because  his  Honor  erred  in  holding  that  Thomas  Wil- 
son is  entitled  to  any  portion  of  the  estate  distributable  among 
the  children  of  Nancy  McJunkiu. 

3.  Because,  if  plaintiff  was  entitled  to  any  portion  of  said 
estate,  he  has  released  the  same,  or,  at  least,  his  acts  and  dec- 
larations raise  that  implication. 

4.  Because  the  decree  is  in  other  respects  erroneous. 

,/Jr//iur,  (or  appellants,  cited  :  Myers  vs.  Myers,  2  McC.  Ch., 
257  ;  Cole  vs.  Crayon,  2  Hill,  Ch.,  311  ;  Connor  vs.  Johnson, 
2  Hill  Ch.,  41  ;  Campbell  vs.  Wii^i^ins,  Rice,  Eq..  10  ;  Swinlon 
vs.  Le^are,  2  McC.  Ch.,  440  ;  Stewart  vs.  Sheffield,  1 3  East,  .'527  ; 
Lomax  vs.  Glover,  1  Rich.  Eq.,  141;  1  Strob.  Eq,,  383; 
Mathefon  vs.  Hall,  3  Swans.,  339. 

Gadberry,  contra. 

Per  Ciiriain.  We  concur  in  Chancellor  Dargan's  decree, 
and  for  the  reasons  contained  in  it,  it  is  allirmed. 

0'Ne.\LL,    C.   J.,    AND    JoH.VSTO.VE    AND     WaHDLAW,  J.I,,    COU- 

ciirriijg. 

Decree  ajjirmed. 


53G  APPEALS  IN  EQUITY. 


Miles  vs.  Wise. 


FuANKLiN  A.  Miles  vs.  Fixklea  G.  Wise,  Adm'r,  and  others. 
Jurisdicfiofi — Injtinctioii — Equitable  Estate. 

W  here  one  has  acquired  a  good  equitable  tille  to  slaves  through  the  distributees 
— there  being  no  creditors — of  an  intestate,  the  former  owner  of  the  slaves,  upon 
whose  estate  no  administration  had  then  been  granted,  equity  will  restrain  one 
who  afterwards  takes  out  letters  of  administration  upon  the  estate  of  the  intes- 
ate,  from  prosecuting  an  action  of  trover  for  the  conversion  of  the  slaves,  against 
such  equitable  owner. 

BEFORE  DUNKIN,   CH.,  AT  MARION,  FEBRUARY,   ISfiO. 

Franklin  A.  Miles  filed  his  bill  on  the  13th  day  of  Febru- 
ary, 1860,  stating,  among  other  things,  that  on  the  3d 
day  of  February,  1849,  he  purchased  from  Joseph  Bird, 
Hugh  G.  Bird,  John  Blackman,  Jr.,  and  wife  Ann,  Mary 
Owens,  Wilson  Herrin  and  wife  Maria,  a  negro  woman  named 
Hannah  and  her  child  Dick — that  (hey  represented  them- 
selves as  tlie  rightful  owners  of  said  slaves,  under  the  will  of 
their  mother,  Elizabeth  Bird;  that  until  some  time  in  the 
year  1S58,  he  retained  the  undisputed  possession  of  said 
negioes;  that  in  1857  the  defendant,  Finklea  G.  Wise,  obtained 
letters  of  administration  upon  the  estate  of  Alafair  Bird,  who 
departed  this  life  intestate,  unmarried,  without  issue,  and  free 
from  debt,  about  the  year  1841  or '42  ;  that  said  Wise,  ad- 
ministrator, shortly  after  commenced  an  action  of  trover 
in  the  Conn  of  Common  Pleas  for  Marion  district,  against 
complainant,  for  the  conversion  of  said  slaves,  and  the  other 
children  of  Hannah,  born  since  the  purchase  by  complainant, 
wliich  action  is  pending  and  pressed  for  trial ;  that  he  has 
learned  upon  inquiry  that  the  slave  Hannah  was  the  property 
of  Alafair  Bird,  she  having  acquired  it  under  the  will  of  her 
father,  Arthur  Bird,  who  died  in  1835  ;  that  Alafair  Bird  was 


APPEALS  IN  EaUITY.  5:57 

Colunil>ia,  May,  1&60. 

unhealthy  and  partially  idiotic,  and  her  hrothers  and  sisters 
made  an  arrangement  by  which  she  was  to  he  snpported, 
living  with  her  mother,  Elizabeth  Bird  ;  that  with  this  view, 
Joseph  15ird,  Ilngh  G.  Bird,  Anna  Bird,  and  Mary  Ann  Bird 
conveyed  all  their  interest  in  remainder  in  two  other  slaves 
bequeathed  to  tlie  said  Alafair  Bird,  hy  the  will  of  her  father, 
to  Edmund  Herrin  and  Wilson  Herriu,  who  had  married  sis- 
ters of  said  Alafair,  in  consideration  of  their  contributing  a 
certain  sum  for  the  sufjport  of  Alafair,  which  sum  was  to  be 
paid  to  Elizabeth  Bird,  the  mother ;  and  to  Elizabeth  Bird, 
the  mother,  the  same  parties  conveyed  the  slave  Hannah  and 
her  increase,  after  the  death  of  Alafair. 

The  bill  then  charged  that  Elizabeth  Bird,  the  mother, 
Hugh  G.  Bird,  a  brother,  and  Mary  Ann  and  Charlotte,  sis- 
ters, were  the  only  heirs  and  distributees  of  Alafair  Bird  ; 
that  the  other  children  of  Arthur  Bird  and  Elizabeth,  to  wit, 
Joseph,  Maria,  Peter,  (the  father  of  Ansy,  wife  of  Fiid<lea  G. 
Wise,  and  Peter,  her  brother,)  and  another  danghler,  after- 
wards intermarried  with  Phillip  Owens,  were  illegitimate,  liav- 
ing  been  born  previous  to  the  marriage  of  their  parents;  that 
consequently,  as  assignee  of  all  those  rightly  interested  in  the 
estate  of  Alafair  Bird,  the  complainant  has  an  indisputable 
title  to  the  slaves,  Hannah  and  her  children,  but  that  this  title 
he  cannot  so  well  set  up,  under  the  strict  rules  of  the  com- 
mon law,  in  his  defence  to  the  action  of  trover;  that  the 
administration  granted  to  the  defendant  Wise  is  unnecessary, 
except  for  the  purposes  of  partition  ;  that  a  recovery  by  the 
said  adfuinistrator,  in  the  action  of  trover,  would  render  it 
necessary  for  the  complainant  to  file  his  bill  for  partition, and 
to  be  substituted  for  his  assignors  in  said  partition  ;  and  that 
the  course  pursued  l)y  the  defendant  Wise,  tends  unnecessa- 
rily to  harrass  and  disturb  tli(>  possession  of  the  complainant, 
and  to  multiply  suits. 

The  hill  prayed  primarily  for  an  injunctioti,  restraining  the 
action  of  trover. 


5:i8  APPEALS  IN  EQUITY. 

Miles  V.I.  VVisie. 

The  motion  for  an  injunction  was  made  at  Marion,  Mon- 
day, February  20,  1860. 

On  the  same  day  the  defendant,  Wise,  filed  his  answer, 
admitting  the  purchase,  by  the  complainant,  of  the  slaves 
Hannah  and  Dick,  from  the  [lersons  in  that  behalf  in  the  bill 
named,  but  denying  all  knowledge  of  the  consideration  paid, 
or  of  any  representations  made  by  the  vendors  at  the  time; 
admitting,  further,  the  apparent  title  acquired  by  said  ven- 
dors, under  the  will  of  Elizabeth  Bird,  and  the  long  continued 
adverse  possession  of  tlie  complainant;  admitting,  furtiier, 
the  grant  of  administration  to  the  defendant  upon  the  estate 
of  Alafair  Bird,  made  on  the  23d  Novetnber,  1857  ;  the 
death  of  said  Alafair,  about  the  time  stated  in  the  bill,  unmar- 
ried and  without  issue,  but  not,  so  far  as  known  to  defendant, 
free  from  debt;  and  the  commencenient  and  pendency  of  the 
action  of  trover  against  the  complainant.  The  answer  further 
admitted  the  bequests  to  the  intestate,  by  her  father,  Arthur 
Bird,  of  the  absolute  estate  in  the  negroes  Hannah  and  Dick; 
the  partial  idiocy  of  Alafair  Bird,  and  the  arrangement  sub- 
stantially stated  in  the  bill,  as  made  l)y  the  brothers  and  sis- 
ters of  the  intestate,  disposing  of  certain  property  belonging  to 
her,  and  including  the  negroes  Hannah  and  Dick,  but  denies 
that  this  arrangement  was  made  with  her  consent,  and  charges 
the  motive  inducing  such  arrangement  to  have  been  self-inter- 
est on  the  part  of  the  parties  thereto.  The  answer  denied  the 
unlawful  cohabitation,  before  actual  marriage,  of  Arthur  Bird 
and  Elizabeth  his  wife,  or  the  illegitimacy  of  any  of  their 
children,  and  claimed  that  Ansy  Wise,  (wife  of  the  defendant,) 
and  Peter  Bird,  her  brother,  (representing  their  fatlier,  Peter 
]3ird,  a  brother  of  Alafair,)  were  lawful  heirs  and  distributees 
of  Alafair.  Ansy  Wise  was  stated  to  have  been  twenty-five 
years  of  age,  and  Peter  Bird  twenty-two,  at  the  date  of  the 
grant  of  administration. 

The  answer  submitted,  that  the  title  to  the  slaves  in  contro- 
versy being  in  the  defendant,  as  administrator,  the  Court 
would,  if  it  entertained  jurisdiction,  decree  a  specific  delivery 


APPEALS  IN  EQUITY.  5:i0 

Columbia,  May,  lb<30. 

to  Ilim  of  the  said  slaves,  but  submitted,  further,  that,  as  the 
matters  and  things  stated  and  coiDphiined  of  were  all  deter- 
minable at  law,  the  complainant  was  not  entitled  to  relief  in 
the  Court  of  E(|uily. 

His  Honor  made  the  following  order,  to  wit: 
Upon  hearing  the  bill  and  aliidavits,  and  the  answer  of 
Finklea  G.  Wise,  the  defendant,  it  is,  on  motion  of  Harllee 
&  Graham,  complainant's  solicitors,  ordered,  that  the  defend- 
ant, Finklea  G.  Wise,  administrator  of  Alafair  Bird,  be 
enjoined  from  further  prosecuting  his  action  of  trover  against 
the  plaintiff,  at  law,  for  tlie  recovery  of  the  slaves  Hannah 
and  her  children,  mentioned  in  the  pleadings,  until  the  fur- 
ther order  of  this  Court,  and  that  a  writ  of  injunction  do 
issue  accordingly. 

The  defendant,  Finklea  G.  Wise,  administrator,  appealed 
on  the  ground  : 

That  the  Court  of  Equity  has  no  jurisdiction  in  the 
premises. 

Ins^/is,  for  appellant,  cited  Brown  vs.  Dickinson,  10  Rich. 
Eq.,  408. 

DdVi^an,  contra,  cited  Riley  Ch.,  .33;  /In<^hson  vs.  fVallace, 
1  Rich.,  1  ;  Marsh  vs.  Nail,  Rich.  Eq.  Cas.,  115. 

The  opinion  of  the  Court  was  delivered  by 

O'Neall,  C.  J.  In  this  case  I  concur  in  the  decree  of  the 
Chancellor. 

The  single  question  prpsenfed  by  the  grounds  of  appeal  is, 
"  that  the  Court  of  Equity  has  no  jurisdiction  in  the  premises." 

The  Court  of  Equity  has  jnrisdirtion  to  prevent  the  asser- 
tion of  a  legal  right,  against  a  plain  eqnitable  rii^lil.  This 
principle  is  as  old  as  the  Court,  and  has  been  asserted  and 
carried  out  in  innumerable  cases. 

Here  the  party  complainant  is  in  possession,  under  r.  pur- 
chase from  the  alleged  distributees  of  the  deceased,  nine 
years  before  the  administration  of  the  defendant.     This  in- 


540  APPEALS  IN  EaUlTY. 

Miles  vs.  Witie. 

testate  died  seventeen  years  before  tlie  grant  of  administra- 
tion. She  was  in  her  lifetime  unhealthy  and  idiotic,  and  at 
her  death  was  free  from  debt,  as  alleged  in  the  bill.  Taking 
this  case,  it  is  plain  that  the  com|ilainant  has  made  ont  a 
case  entithng  him  to  the  relief  of  the  Court  of  Equity.  The 
case  of  Marsh  and  wife  vs.  A^ail  and  others,  Rich.  Eq.  Cas., 
115,  is  a  conclusive  authority  in  his  favor. 

But  it  is  supposed  that  Brown  vs.  Dickinson,  10  Rich.  Eq., 
40S,  stands  in  his  way.  I  do  not  thijik  so.  In  that  case  the 
complainant's  right  depended  upon  a  deed  whicli  was  sup- 
posed to  constitute  a  separate  estate  in  Mrs.  Sessions,  his 
grantor.  The  bill  sought  a  discovery  of  that  which  he  did 
not  obtain.  That  closed  the  Court  of  Equity  against  him  ; 
and  the  case  was  properly  left  for  the  Law  Court.  There  is 
no  such  ditliculty  in  tliis  case. 

The  defendant's  answer  sets  up  no  debts  ;  after  a  lapse  of 
seventeen  years,  and  from  the  condition  of  the  intestate,  the 
presumption  is  she  owed  none.  The  only  contest  set  up  is 
as  to  the  legitimacy  of  two  of  the  children  of  Arthur  Bird 
and  Elizabeth,  his  wife,  (sister  and  brother  of  tlie  intes- 
tate.) This  question  cannot  be  tried  in  the  action  at  law;  it 
must  be  tried  in  the  Court  of  Equity,  where  the  case  is 
brought  by  the  complainant.  There  can  be  no  propriety, 
under  these  circumstances,  of  allowing  the  defendant  to  liti- 
gate at  law,  and  disturb  the  complainant's  possession.  The 
circuit  decree  of  Chancellor  Dunkin  is  atErmed. 

Johnstone  and  Wardlaw,  JJ.,  concurred. 
Decree  affirmed. 


APPEALS  IN  EQUITY.  541 


Columbia,  May.  ISnO. 


Ch.vs.  B,  Farmer,  adm'r,  vs.  A.  M.  D.  Spell  and  others, 

TFiHs  and   Teatcifncnts — .'idministratloii — Debts — Equitable 

Conversion. 

Testator  directed  "  first,  that  all  my  jiist  debts  he  paid  and  discharged  ;  and,  sec- 
ondly, that  the  remainder  of  my  property  he  disposed  of  as  lollows."  He  then 
devised  all  his  "lands  on  the  Round  O,  known  as  the  Ash  Hill  plantation."  to 
his  son,  '-to  be  valued  by  three  disinit-resled  persons,  and  to  he  received  by 
him  at  said  valuation,  as  so  much  of  his  share  of  my  estate" — directed  that  his 
daughter  should  "  receive  in  negroes,  the  amount  o(  the  valuation  of  the  land 
given  to  my  son  ;"  and,  after  provulinff  tor  other  children  to  be  born,  should 
there  be  any,  bequeathed  the  remanider  of  his  per.->onal  properly  to  his  wife: — 
Hi-hl.  that  there  was  no  equitable  conversion  of  the  larids  into  personalty,  and 
that  as  between  the  devisee  and  legatees  the  personal  estate  should  be  ex- 
hausted in  payment  of  debts  before  resort  could  he  hud  to  the  real  estate 
devised. 

BEFORE  DUNKIN,  CH.,  AT  COLLETOX,   FEnHl'ARV,  ISOO. 

Paul  W.  Spell,  being  .soizcd  and  possessed  of  a  plantation 
known  as  liis  Ash  Hill  plantation,  and  of  some  slaves  and 
other  personal  estate,  died  in  March,  )857,  leaving  a  last  will 
and  testament,  as  follows  : 

*'  In  the  name  of  God,  Amen.  I,  Panl  W.  Spell,  of  the 
aforesaid  State  and  district,  being  of  sound  mind  and  mem- 
ory, and  considering  the  nncerlainiy  of  this  frail  and  transi- 
tory life,  do  therefore  make,  ordain,  publish  and  declare  this 
to  be  my  last  Will  and  'resiamenf,  viz.:  First,  that  all  my 
just  delits  be  paid  and  discharged;  and,  secondly,  that  (he 
remaindfr  of  niy  properly  be  disf)osed  o(  as  follows,  viz.  : 
First — I  will  and  beqiu-aih  to  my  son,  Eldred  Spell,  all  my 
lands  on  the  Round  0,  kiinwii  as  the  Ash  Hill  plantation,  lo 
be  delivered  to  him  whenever  he  shall  become  of  age,  to  be 
valued  by  three  disinterested  persons,  and  to  be  received  by 
liim  at  said  valuation,  as  so  much  of  his  share  of  my  estate, 


542  APPEALS  IN  EaUITY. 

Farmer  v.s.  Spell. 

to  have  and  to  hold  the  same  forever.  Secondly — It  is  my 
will  that  my  daughter,  Sarah  Harriet,  shall  receive  in  negroes 
the  amount  of  the  valuation  of  the  land  given  to  my  son, 
Eldred,  to  be  delivered  to  her  when. she  arrives  at  the  age  of 
twenty-one,  to  have  and  to  hold  the  same  forever.  Third — 
Should  mv  wife,  Amanda  M.  D.  Spell,  have  another  child  or 
children  by  me,  then  the  said  child  or  children  to  receive  in 
negroes,  an  amount  equal,  each,  to  my  daughter,  Sarah  Har- 
riet, to  receive  the  same  at  the  age  of  (wenty-one,  to  have 
and  to  hold  the  saujc  forever.  Fourth — It  is  my  will  that 
my  wife,  Amanda  M.  D.  Spell,  should  have  the  remainder  of 
my  personal  property  her  natural  life,  and  after  her  death  to 
be  equally  divided  among  my  children,  share  and  share 
alike,  the  child  or  children  of  a  deceased  child  to  receive  his 
or  her  portion  so  dying.  Fifth — It  is  my  will,  in  case  either 
of  my  children  die  without  issue  of  body,  that  the  share  of 
said  child  revert  back  to  my  surviving  children.  And 
lastly — I  nominate  and  appoint  my  brother,  Henry  McF. 
Spell,  executor  to  this,  my  last  Will  and  Testament,  and 
hereby  revoking  all  others  by  me  made,  declare  this  to  be 
my  last  Will  and  Testament,  executed  this,  the  20th  January, 
in  the  year  of  our  Lord  one  thousand  eight  Iiundred  and 
fifty-seven." 

The  executor  named  in  the  will  refused  to  qualify,  and  the 
complainant  became  administrator  with  the  will  annexed. 

The  debts  proved  to  be  very  considerable,  and  this  bill 
was  filed  against  the  devisee  and  legatees  and  some  of  the 
creditors  for  a  sale  of  the  estate,  and  praying  that  the  assets 
be  administered  in  this  Court.  The  principal  question  made 
was,  whether  as  between  the  devisee  and  legatees  the  real 
and  personal  estate  should  contribute  equally  in  payment  of 
the  debts  or  whether  the  personal  estate  should  be  exhausted 
before  resort  could  be  had  to  the  realty. 

DuNKiN,  Ch.  The  pleadings  present  the  facts  upon  which 
the  judgment  of  the  Court  is  sought. 

By  the  will  of  the  testator,  it  was  clearly  his  intention  to 


APPEALS  IN  EaiJITY.  543 

Columbia,  May.  1860. 

place  his  son  and  daughter  upon  an  eqnal  footing,  in  the  dis- 
tribution of  his  estate.  To  carry  this  purpose  into  eti'ect,  his 
Round  0  plantation  is  directed  to  be  valued  by  three  disin- 
terested persons,  and  to  be  received  by  his  son  at  that  valua- 
tion, as  so  much  of  his  share  of  his  (testator's)  estate:  And 
the  daughter  is  directed  to  receive  in  negroes,  the  amount  of 
the  valuation  of  the  land  given  to  the  son.  'V\\c  same  prin- 
ciple is  applicable,  as  was  declared  in  Perry  vs.  Ln^^an^  5 
Rich.  Eq.,  202.  As  between  these  legatees  it  was  an  equita- 
ble conversion  by  the  will  itself,  of  the  land  into  personalty, 
as  much  so  as  if  testator  had  directed  the  plantation  to  be 
sold,  in  order  to  ascertain  the  value,  and  fix  the  equality 
between  them. 

It  is  suggested  in  the  pleadings,  and  seemed  to  be  conceded 
at  the  hearing,  that  the  entire  personalty  would  be  insutlicient 
to  pay  the  debts  of  the  testator,  in  which  event  a  sale  of  the 
real  and  personal  estate  would  probably  be  necessary  or  expe- 
dient. But  the  Court  cannot  assume  the  insufliciency  with- 
out a  report  from  commissioner  or  special  referee,  to  whom 
an  enquiry  was  directed  by  the  order,  23  February,  18,59.  It 
may  be  proper  to  enlarge  that  order  by  directing  the  commis- 
sioner to  report  the  probable  value  of  the  personal  estate  of 
the  testator,  and  of  what  ihe  same  consists  ;  and  it  is  accord- 
ingly so  ordered  and  decreed  ;  and  that  he  have  leave  also  to 
report  upon  the  necessity  or  expediency  of  a  sale  of  all  or 
any  part  of  the  testator's  estate.  Upon  the  filing  of  said 
report,  parties  may  be  at  liberty  to  apply  at  chambers  for 
such  order  as  may  be  necessary. 

Finally,  it  is  ordered  and  decreed,  that  the  plaintitT,  as 
administrator  wiih  tiie  will  annexed,  account  before  the  spe- 
cial referee  for  his  actings  in  relation  to  said  estate,  and  that 
the  special  referee  report  thereon  at  the  next  sitting  of  this 
Court. 

Eldred    Spell,  defendant,  appealed    from   so   much    of  the 


544  APPEALS  IN  EaUlTY. 

Farmer  t's.  Spell. 

decree  as  decided   that  there  was  an  equitable  conversion  of 
the  lands  devised  to  him,  into  personalty  : 

1.  Because  the  devise  to  him  of  the  "  lands  on  the  Round 
0,  known  as  the  Ash  Hill  plantation,"  was  a  devise  of  the 
land  itself  as  such;  and  if  so,  there  was  no  equitable  con- 
version of  it  into  personalty. 

2.  Because,  if  it  was  the  intention  of  testator  to  place  "his 
son  and  daughter  upon  an  equal  footing  in  the  distribution 
of  his  estate,"  it  is  equally  clear  that  it  was  his  intention  that 
the  "Ash  Hill  plantation"  itself  was  to  go  into  the  possession 
of,  and  be  enjoyed  by,  this  appellant. 

Traci/,  for  appellant. 

1.  The  constructive  conversion  of  property,  by  the  Court  of 
Equity,  is  eiTected  by  applying  the  principle :  that  which 
ought  to  be  clone,  will  be  considered  as  done.  1  Jar  man  on 
Wills,  523  ;  Fletcher  vs.  Jishburner,  1  Bro.  Ch.  Ca.,  497.  And 
realty  can  be  converted  into  personalty,  only.,  where  a  sale 
has  been  directed.  1  Rop.  Leg.,  503 ;  1  Sanders,  U.  &  T., 
300,  marg. 

It  is  evident,  that  only  where  the  character  of  the  estate  is 
directed  to  be  altered,  and  this  has  not  been  done,  that  occa- 
sion can  arise  for  the  application,  in  this  connection,  of  the 
principle  above  mentioned.  And,  in  every  case  that  can  be 
found,  of  the  equitable  conversion  of  realty  into  personalty, 
a  sale  had  been  ordered,  and  the  proceeds  were  what  was 
given. 

In  our  own  cases,  Postell  vs.  Postell,  1  DeS.,  173;  Mathis 
vs.  Griffin,  8  Rich.  Eq.,  79;  fVilkins  vs.  Taylor,  8  Rich.  Eq., 
291  ;  North  7's.  Valk,  Dudley  Eq.,  212  ;  Perry  vs.  Logan,  5 
Rich.  Eq.,  202. 

In  the  English  cases,  Mallabar  vs.  Mallabar,  Ca.  Temp. 
Talb.,  79;  Ogle  vs.  Cook  (cited  in  North  vs.  Valk);  Spink  vs. 
Lewis,  3  Bro.  Ch.  Ca.,  355;  Dighy  vs.  Legard,  in  note  to 
Cruise  vs.  Early,  3  P.  VVnis.,  22  ;   Wright  vs.  fVright,  16  Ves. 


APPEALS  IN  EaUITY.  545 

Columbia.  May,  I860. 

Jr.,  ISS;  Dut'ow  vs.  Mo/teaux,  1  Ves.,  Sr.,  320  ;  Chit ty  vs. 
Parker,  2  Ves.,  Jr.,  271  ;  Fletcher  vs.  Ashburner,  1  Bro.  Ch. 
Ca.,  497  ;  Law  Lib.,  vol.  xl.,  546  ;  Ackroyd  vs.  Smithson.,  I 
Bro.  Ch.  Ca.,  503;  Law  Lib.,  vol.  xl.,  571 ;  Embleyn  vs.  Free- 
man (cited  in  Fletclier  vs.  Jlshburner) ;  Flanas^an  vs.  Flana- 
gan, lb.  ;  Collins  vs.  fVakeman,  2  Ves.,  Jr.,  683.  So  in  the 
leading  American  cases,  Craig  vs.  Leslie,  and  the  dozens  of 
cases,  English  and  American,  cited  in  Law  Lib.,  vol.  xl.,  in 
discnssing  Fletclier  vs.  „ishburner,  and  Ackroyd  vs.  Smithson. 
So  in  Gntt  vs.  Cook,  7  Paige  Rep.,  521,  and  in  all  the  other 
cases  that  can  be  fonnd. 

Thus  Mr.  Roper's  position,  that  a  direction  to  sell  is  essen- 
tial to  a  conversion,  is  su|)ported  by  the  fact  that  no  case  can 
be  fonnd  of  the  conversion  of  realty  into  personalty,  in  which 
a  sale  had  not  been  ordered. 

And  no  sale  was  ordered  in  this  case. 

2.  Bnt  says  the  learned  Chancellor:  "The  same  principle  is 
applicable  as  was  declared  in  Perry  vs.  Lngan.^'  Apply  the 
rnle  laid  down  in  this  case,  and  it  will  not  operate  against 
appellant. 

The  Chancellor,  in  delivering  the  opinion  of  the  Court  of 
Appeals,  says: 

"  Whenever  it  is  ajiparent,  from  the  words  of  the  will,  that 
the  testator  meant  that  his  real  estate,  as  such,  should  not 
pass  into  the  possession  of  the  objects  of  his  testamentary 
bounty,  but  that  his  real  estate  should  be  converted  into 
money,  and  as  money,  that  it  should  come  to  those  for  whom 
he  designs  the  benefaction,  in  equity,  it  will  be  regarded  as  a 
bequest  of  personal  property.  Under  such  circumstances,  it 
will  be  treated  in  all  respects  as  if  the  conversion  had  been 
made  by  the  testator  in  his  lifetime." 

This,  by  no  means,  indicates  that  the  conversion  is  to  be 
effected  otherwise  than  by  a  sale.     Bnt  applying  the  rule  : 

Did    testator,  in  this  case,  mean    "that   his  real   estate,  as 
such,  should  not  pass  into  the  possession  of  the  object  of  his 
testamentary  bounty  ?"     It  is  the  land  he  gives,  ?iot  the  pro- 
86 


546  APPEALS  IN  EaUITY. 

Farmer  vs.  Spell. 

ceeds  of  it.  "I  will  and  bequeath  to  tny  son,  Eldred  Spell, 
all  my  lands  on  the  Round  0,  known,  &c.,  to  be  delivered  to 
him  whenever  he  shall  come  of  age,  to  be  valued  by  three 
disinterested  persons,  and  to  be  received  by  him  at  said  valu- 
ation, as  so  much  of  his  share  of  my  estate,  &c."  The  land 
is  given ;  the  land  is  to  be  delivered ;  the  land  is  to  be 
received. 

What  indicates  that  it  is  not  to  be  received  as  land  ?  It  is 
supposed  its  being  directed  to  be  valued,  and  to  be  received 
"  as  so  much  of  his  (the  son's)  share  of  my  (testator's)  estate." 
But  the  valuation  was  only  for  the  purpose  of  ascertaining 
what  value  in  negroes  the  daughter  should  receive.  And 
though  to  be  received  as  so  much  of  testator's  estate,  it  was 
not  to  be  received  as  so  much  money  of  testator's  estate,  but 
as  land  worth  so  much  money. 

When  land  is  valued  by  commissioners  in  partition,  and 
allotted  to  an  heir,  it  is  not  allotted  to  him  as  so  much  money 
of  estate  of  him  through  whom  he  claims,  but  as  land  worth 
so  much  money.  The  valuation  in  partition  and  in  this  case 
are,  in  principle  and  effect,  identical.  Is  the  land  received  by 
the  heir  personal  property? 

3.  Besides,  "  Courts  of  Equity,  in  genera!,  will  not  inter- 
fere to  change  the  quality  of  the  property,  as  the  testator  has 
left  it,  unless  there  is  some  clear  act,  or  intention,  by  which 
"he  has  unequivocally  fixed  upon  it  throughout  a  definite 
character,  either  as  money  or  as  land,"  "  and  to  establish  a 
conversion,  the  will  must  direct  it,"  out  and  out,  "for  all  pur- 
poses, not  merely  those  of  the  devisees."  Jarman  on  Wills, 
vol.  i.,  523,  note  1,  and  numerous  authorities  there  cited  ; 
Spence  Eq.  Ju.  Ct.  Ch.,  vol.  ii.,  256.  Even  a  direction  that 
testator  wished  the  land  to  be  sold,  does  not  necessarily  effect 
a  conversion.      Cook  vs.  Dungerfield,  2  Atk.,  567. 

4.  Suppose  there  was  a  conversion.  It  was  not  "out  and 
out,"  but:,  as  circuit  decree  says,  for  a  specific  purpose  only, 
"  to  ascertain  the  value  and  fix  the  equality  between  them." 

Where  a  conversion  is  ordered  for  a  specific  purpose,  and 


APPEALS  IN  EaUITY.  547 

Columbia,  May,  1860. 

the  purpose  fails,  there  is  no  conversion.  Ackroyd  vs.  Smith- 
son,  in  which  Sir  William  Scott  changed  the  mind  of  Lord 
Thurlow,  and  reviewed  all  the  authorities.  Fonb.  Eq.,  vol,  2, 
lis,  n.  a.  It  appears  from  the  facts,  that  there  are  no  negroes 
left,  after  paying  debts,  to  give.  The  specific  purpose  for  the 
valuation  or  conversion  then  has  failed,  and  so  the  conver- 
sion fails.  Croft  vs.  Slee,  4  Ves.,  64.  A  conversion,  for  the 
sake  of  convenience,  fails,  if  it  should  happen  that  the  con- 
version is  not  necessary.  Spence's  Eq.  Ju.  Ct.  Ch.,  262,  marg. 
Next  of  kin  cannot  call  for  a  conversion,  merely  that  they 
may  take  proceeds  as  personal  estate.  When  the  purpose 
fails,  said  Lord  Eldon,  the  intention  fails,  and  the  Court  re- 
gards testator  as  not  having  directed  the  conversion.  Ripley 
vs.  JJ^aterworth,  7  Ves.,  435;  /////  vs.  Cock,  1  Ves.  and  Reames; 
Spence  Eq.  Ju.  Ct.  Ch,,  234,  marg,;  Chitty  vs.  Parker,  2  Ves., 
271,  marg. 

5.  Again,  the  realty  "cannot  be  appropriated  towards  the 
payment  of  the  debts,"  "  until  all  the  personalty  is  exhaust- 
ed." Because  every  devise  of  land,  (when  this  will  was  made,) 
or  of  the  value  of  land,  is  specific.  Forrester  vs.  Leigh,  Am- 
bler, 173  ;  Warley  vs.  JVarley,  Bail.  Eq.,  409  ;  Rop.  Leg,,  vol, 
1,  200,  marg.  The  bequest  to  the  daughter  is  not  specific, 
TVigfall  vs.  Wigfall,  3  DeS„47;  1  Rop,  Leg.,  190;  Godard 
vs.  JVagner,  2  Strob,  Eq.,  1  ;  Pc/l  vs.  Ball,  Spear  Eq,,  S4  ; 
Davis  vs.  Cain,  I  Iredell  Eq.,  304. 

Cam,  contra. 

The  opinion  of  the  Court  was  delivered  by 

Wardlaw,  J.  Courts  of  Equity,  in  promotion  of  right, 
sometimes  consider  as  done  that  which  should  have  been 
done.  On  this  principle,  laud  directed  by  a  testator  to  be 
sold  and  turned  into  money,  is  considered  as  personalty 
before  an  actual  sale.  Fletcher  vs.  .ishburner,  1  Br.  C.  C, 
497  ;  W.  and  T,  L.  C,  546  ;  North  vs.  Valk,  Dud,  Eq,,  212. 
Equitable  conversion  of  realty  into  personalty  is  effected  in 
strictness  only  where  a  sale  of  the  land  is  ordered,  and  dis- 


518  APPEALS  IN  EaUlTY. 


Farmer  vs.  Spell. 


position  of  the  proceeds  is  made;  but  if  the  intention  to 
dispose  of  the  subject  as  personahy  can  be  ascertained  from 
tfie  face  of  the  will,  it  may  not  be  indispensable  that  a  sale 
should  be  explicitly  directed  as  a  means  of  conversion. 
Chancellor  Dargan  says,  with  sufficient  precision,  in  Perry  vs. 
Logan.,  5  Rich.,  202,  "  whenever  it  is  apparent,  from  the 
words  of  the  will  that  the  testator  meant  that  his  real  estate, 
in  that  form,  should  not  pass  into  the  possession  of  the 
objects  of  his  testamentary  bounty,  but  should  be  converted 
into  money,  and  as  money,  come  to  tliose  for  whom  he  de- 
signs the  benefaction,  this  will  be  considered  in  equity  as  a 
bequest  of  personalty.  Under  such  circumstances,  it  will  be 
treated,  in  all  respects,  as  if  the  conversion  had  been  made 
by  the  testator  in  his  lifetime."  So,  too,  cases  might  be 
within  the  principle  of  conversion  as  to  some  incidents, 
where  no  alteration  of  the  form  of  the  estate  was  contem- 
plated. Thus,  if  a  testator  should  give  his  land  to  his  son, 
and  his  slaves  to  his  daughter,  and  express  his  intention  that 
the  land  and  slaves  should  contribute  to  the  payment  of  his 
debts,  ratably  to  their  respective  values,  his  will  would  be 
the  law  between  his  two  children,  and  the  devisee  could 
claim  no  exoneration  from  liability  for  debts.  The  same  end 
might  be  effected  by  any  form  of  words  which  would  suffi- 
ciently exhibit  testator's  intention  to  put  the  legatees  on 
terms  of  complete  equality,  but  no  equivocal  expression  of 
intention  can  supersede  the  rules  of  law  in  this  matter,  and 
much  less  can  the  rules  be  deflected  in  operation  by  the 
seeming  hardship  of  their  result  as  to  a  particular  legatee. 

The  law  of  this  State  as  to  the  relative  liability  for  the 
debts  of  a  testator  of  his  real  and  personal  estate,  is  nearly 
identical  with  that  of  England,  where  a  testator  there  has 
charged  his  whole  estate  with  his  debts.  The  statute  of  Geo. 
II,  c.  7,  sec.  4,  2  Stat.,  571,  abolishes  here  the  distinction 
between  real  and  personal  estates  in  the  payment  of  debts, 
so  far  as  the  rights  of  creditors  are  concerned,  but  as  between 
at  devisee  of  realty  and  a  legatee  of  personalty  still  leaves  the 


APPEALS  IN  EaUITY.  549 

Columbia,  May,  1S60. 

personalty  as  the  primary  fund  for  the  payment  of  debts.  It 
is  settled  by  the  elaborate  judgment  in  Hull  i^f.  Hull,  3  Rich. 
En.,  f)5,  as  to  estate  of  which  a  testator  was  seized  and  pos- 
sessed at  the  time  of  making  his  will,  and  as  between  the 
objects  of  his  bonnty,  that  a  specific  legacy  of  personalty 
must  be  exhansted  in  payment  of  debts  before  resort  can  be 
had  to  land  devised,  where  no  different  rnle  is  prescribed  in 
the  will.  Every  devise  of  land  is  specific,  [Broorn  vs.  Monck, 
10  Ves.,  597,  JVarley  vs.  IVarley.,  Bail,,  397,)  and  without  the 
aid  of  this  principle  the  devise  in  the  present  instance  is 
unquestionably  specific,  for  it  is  separated  and  distinguished 
from  all  other  lands  by  the  terms  of  descrij)tion  :  "All  my 
lands  on  the  Round  0.,  known  as  the  Ash-hill  plantation." 
On  the  other  hand,  the  legacy  to  Sarah  Harriet,  is  not  speci- 
fic, (although  she  would  not  be  helped  if  it  were  otherwise,) 
being  merelv  the  amount  of  the  value  of  the  land,  to  be  paid 
in  negroes,  without  precise  designation  of  the  sum  of  nuiney 
to  which  she  should  be  entitled,  or  the  number,  names,  ages 
or  sex  of  the  negroes  to  be  used  towards  satisfaction  of  the 
legacy.  Everything  about  the  legacy  is  indefinite, and  undis- 
tinguished from  subjects  of  like  kind. 

The  testator  directs,  "  first,  that  all  my  (his)  just  debts  be 
paid  and  discharged,  and  secondly,  that  the  remainder  of  my 
(his)  property  be  disposed  of  as  follows;"  and  then  proceeds 
to  make  his  devise  and  be^iuests.  And  it  is  argued  that  this 
charge  of  his  debts  on  his  whole  estate  serves  to  manifest  his 
purpose  to  put  his  real  and  personal  property  in  the  same 
category,  as  a  common  and  equal  fund  for  satisfaction  of 
his  liabilities.  It  is  naked  conjecture,  not  founded  on  any 
fair  construction  of  the  terms  and  provisions  of  the  will,  that 
the  intention  of  testator  would  be  defeated  by  enforcing  the 
rule  of  law  as  to  the  prior  liability  for  his  debts  of  his  slaves 
and  money.  There  is  no  intimation  in  the  will  that  the  tes- 
tator was  ignorant  or  mistaken  as  to  the  legal  effect  of  his  dis- 
positions, nor  of  his  intent  or  wish  that  there  should  be  any 
departure  from  the  usual  course  in  the  administration  of  his 


550  APPEALS  IN  EaUITY. 

Farmer  vs.  Spell. 

assets.  Every  one  is  presumed  to  know  the  law  ;  and  this 
testator  must  be  presumed  to  knowthat  if  he  forbore  to  make 
a  different  direction,  as  he  had  a  plain  right  to  make  or  for- 
bear to  make,  his  personalty  must  be  applied  to  his  debts 
before  his  lands  could  be  used  for  this  end.  If,  in  fact,  he 
knew  the  law,  then  he  designed  the  consequences  of  his  dis- 
positions ;  and  we  are  not  autliorized  to  conjecture,  against 
the  legal  presumption  of  skill,  and  in  the  lack  of  any  contrary 
manifestation  Irom  the  context,  that  there  has  been  disap- 
pointment of  his  purpose. 

The  direction  of  the  testator  that  his  debts  be  first  paid, 
and  that  his  devise  and  bequests  shall  operate  on  the  rest  of 
his  estate  not  consumed  in  such  payment,  is  merely  the  super- 
fluous expression  of  the  inevitable  conclusion  or  implication 
of  the  law.  It  is  mere  surplusage,  not  modifying  to  any  ex- 
tent the  injunction  of  law.  It  is  simply  announcing  in  words 
the  desire  of  the  testator  to  fulfil  his  lawful  duty  to  be  just 
before  he  undertakes  to  be  generous.  In  our  last  case  on 
this  point,  Lloyd  vs.  Lloyd,  10  Rich.,  469,  the  testator  directed 
"  that  all  his  just  and  lawful  debts,  and  all  lawful  charges 
against  his  estate  be  fully  paid,"  and  then  devised  and  be- 
queathed "  all  the  rest  and  residue  of  his  property,  real  and 
personal"T— the  words  in  Spell's  will  are  not  quite  so  strong — 
and  it  was  held  that  the  charge  of  debts  was  superfluous, 
and  inoperative  to  disturb  the  prior  liability  of  personalty 
bequeatlied  generally,  even  to  real  estate  acquired  after  mak- 
ing the  will,  and  left  to  descend.  Lloyd  vs.  Lloyd  was 
decided  on  the  authority  of  Henry  vs.  Graham,  9  Rich.,  100 
where  the  words  of  the  will,  in  this  respect,  were,  "  I  direct 
all  my  just  debts  to  be  paid."  The  same  view  was  taken  in 
Brown  vs.  James,  3  Strob.,  24,  as  to  the  direction  that  just 
debts  be  paid.  In  that  case  the  doctrine  on  this  point  is  well 
put  interrogatively.  Does  there  appear,  from  the  whole  testa- 
mentary disposition  taken  together,  an  intention  on  the  part 
of  testator,  so  expressed  as  to  convince  a  judicial  mind,  that 
it  was  meant  not  merely  to    charge    the  estate   secondarily 


APPEALS  IN  EaUITY.  551 


Columbia,  May.  ISOO. 


liablo,  but  so  to  charge  it  as  to  exempt  the  estate  primarily 
liable  in  whole  or  in   part?     No  such  intention  to  exonerate 
the  personalty  can  be  detected  in  this  will.     The  land  speci- 
fically devised   to  the  son,  and  to  be  delivered  to  hitn    when- 
ever he  should   become  of  age,  is  directed   to  be  valued  ;    but 
that  valuation  is  ordered,  without  any  expression  of  desire 
that  the  land  should  be  changed  in  character,  or  that  it  should 
be   taken   subject  to  any  abnormal    liability  for  debts  ;   and, 
indeed,  valuation  is  directed  merely  to  ascertain  the  amount 
of  the  bequest  to  the  daughter,  without  changing  its  rank.     It 
is  very  probable  that   the  testator  made  the  mistake,  so  com- 
mon with  men  in  debt,  of  over-estimating  the  net  value  of  his 
estate,  for  we  find  him  giving  to  possible  children   legacies 
equal  in  value  to  that  of  the  daughter,  and  providing  that  his 
wife  should  enjoy  for  life  "  the  remainder,"  that  is,  residue  of 
his  personal  property;  but  we  cannot  be  sure,  from  his  words, 
that  if  hfe  had  been  premonished  fully  of  the  state  of  his  affairs 
that  would  exist  after  his  death,  and  instructed  actually,  as  is 
always  presumed  in  law,  of  tlie  ordt^r  of  liability  by  law  of 
the  several  portions  of  his  estate  for  satisfaction  of  his  debts, 
he  would  have  changed  his  dispositions  m  any  respect.     We 
are  not  at  liberty  to  conjecture,  on  any  fanciful    notions  of 
equality  and  equity,  that  he  did   not  intend  to  do  that  which 
the  laws  of  many  countries  (thus  exhibiting  a  very  common 
sentiment  of   mankind)    would    have    required    him    to    do, 
namely,  give  superiority  to  his  first-born  of  the  male  gender 
in  relation  to  that  kind  of  estate  more  immediately  connected 
with  duty  to  the  State  and  the  pride  and  aggrandizemoit  of 
families.  Suppose  the  land  had  been  taken  from  the  sou  by  title 
paramount,  it  wotild  hardly  be  pretended  that  the  son  could 
obtain  contribution  from  his  sister,on  this  notion  of  intended 
equality.     No  sentiment  can  be  more  general  among  men 
than  the  desire  to  provide  for  the  comfortable  sustenance  of 
their  surviving  and  bereaved  consorts  in  life;  yet  we  could 
not  conclude,  in  deference  to  this  sentiment,  that  because  the 
testator  gave   an  anticipated   remainder  of  personalty   to  bis 


552  APPEALS  IN  EaUITY. 

Farmer  vs.  Spell. 

wife  and  left  her  without  other  provision,  she  has  a  valid 
claim  on  the  other  legatees  for  contribution  from  their  lega- 
cies for  her  maintenance.  Her  dower  is  independent  of  the 
will,  but  in  the  event  slie  takes  nothing  by  gift  of  the  testa- 
tor. It  would  be  utterly  unsafe,  nay,  despotic,  to  determine 
judicially  that  a  testator  intended  whatever  the  Judge  may 
think  he  ought  to  intend.  Then  the  fact  that  this  testator, 
after  a  charge  for  debts,  bestowed  on  his  legatees  the  remain- 
der or  residue  of  his  estate,  is  supposed  to  demonstrate  his 
intention  of  equality  among  them  as  to  burdens  and  benefits. 
Similar  expressions  were  adjudged  in  Lloyd  vs.  Lloyd,  to 
have  no  such  effect,  and  correctly  so  adjudged.  The  testator 
here  chose  to  put  the  implication  of  law  in  the  form  of  an 
express  direction  ;  yet  it  cannot  be  inferred  logically  that  he 
intended  anything  more  than  the  implication  of  law.  He 
used  the  term  remainder,  because  he  knew  that  his  testa- 
mentary gifts  could  have  no  operation  on  his  estate,  except 
as  to  the  remainder  left  after  the  payment  of  his  debts;  but 
this  does  not  manifest  any  further  independent  and  discon- 
nected intention  on  his  part  to  derange  the  rank  of  the  things 
given  in  paying  debts.  With  all  proper  respect  for  the  opin- 
ions of  others,  it  seems  to  me  leaping  in  the  dark  to  a  con- 
clusion, to  affirm  that  this  testator  meant  his  land  devised  to 
pay  his  debts  before  his  personalty  was  exhausted. 

The  decretal  orders  of  the  Chancellor  are  not  appealed 
from,  and  seem  to  be  unobjectionable.  We  adjudge  that  the 
doctrine  of  the  circuit  decree  that  the  land  is  liable  for  the 
debts  of  testator  before  the  personalty  be  exhausted,  whether 
this  be  founded  on  the  principle  of  equitable  conversion  or 
any  provision  m  the  will,  cannot  be  maintained,  and  must  be 
reversed. 

And  it  is  ordered  that  the  decree  be  reformed  accordingly. 

Johnstone,  J.,  concurred. 

O'Neall,  C.  J.,  dissenting.  I  concur  in  Chancellor  Dun- 
kin's  decree. 

It  is   plain  to  my  mind  that  the  testator  intended  perfect 


APPEALS  IN  EQUITY.  553 

Columbia,  May,  1S60. 

equality  among  his  children.  His  will  plainly  contemplates 
the  payment  of  his  debts  out  of  the  whole  of  his  estate,  real 
as  well  as  personal.  It  directs  the  payment  of  all  his  debts, 
and  provides  that  "the  remainder  of  my  property  be  disposed 
of  as  follows;"  the  devise  and  becpiest  follow  this  provision. 

This,  it  seems  to  me,  was  equivalent  to  a  devise,  charging 
the  whole  of  his  estate  with  the  |iaymont  of  his  debts,  in  the 
first  instance,  and  then  directing  that  the  devise  and  bequest 
should  have  effect. 

Saddling  the  del)ts  ujion  the  personal  estate  first,  has  the 
effect  to  leave  the  daughter  nearly  penniless,  and  to  confer 
Ujion  the  son  a  valuable  real  estate. 

Such  injustice  ought  never  to  be  allowed  unless  some  rule 
of  law  forces  it  npon  the  Court.  None  such  exists.  I  am, 
therefore,  for  affirming  the  Chancellor's  decree. 

Decree  reformed. 


554  APPEALS  IN  EQUITY. 


Pesrues  vs.  Pegiies. 


^.  F,  Pegues,  Executor,  vs.  C.  M.  Pegues  and  others. 
Wiils  and  Testaments — Legacy  to  Deceased  Child. 

The  Act  of  17S9,  §  9,  5  Stat.,  107,  was  intended  to  provide  for  the  ease  of  a  lapse 
by  the  death  of  a  child,  after  the  execution  of  the  will  of  the  father  or  mother. 
The  Act  does  not  apply  where  the  child  was  dead  when  the  will  was  executed. 

BEFORE  DUNKIN.  CH.,  AT  MARLBOROUGH,  FEBRUARY,  1S60. 

William  Pegues,  Sr.,  died  in  1857,  leaving  of  force  a  last 
will  and  testament,  made  and  executed  on  the  3d  May, 
1852. 

By  the  second  clause  of  his  will,  he  bequeathed  as  fol- 
lows, viz:  "I  give  and  bequeath  to  my  son,  Malachi  Pegues, 
the  sum  of  1 1,500;"  and  the  twelfth  clause  was  in  these 
words,  viz:  "All  the  rest  and  residue  of  my  estate,  not  here- 
inbefore devised  and  bequeathed,  I  will  and  bequeath  to  all 
my  children,  (except  my  son,  Claudius  Pegues,)  and  my 
grand-son,  Joseph  Pegues,  the  son  of  said  Claudius  Pegues, 
to  be  equally  divided  amongst  them,  share  and  share  alike. 
The  share  given  to  my  grand-son,  Joseph,  is  given  to  him, 
instead  of  his  father,  in  compliance  with  his  father's  request." 

Malachi  Pegues,  the  son  referred  to  by  the  testator,  in  the 
second  clause  of  his  will,  was  already  dead  at  the  time  of 
the  execution  of  the  will ;  he  having  died  in  1849. 

The  children  of  Malachi  Pegues  claimed  the  pecuniary 
legacy  of  $1,500,  under  the  second  clause  of  their  grand- 
father's will,  and  also  the  share  of  the  residuum  to  which 
their  father  would  have  been  entitled,  had  he  survived  the 
testator.  This  claim  was  resisted  on  behalf  of  infant  chil- 
dren of  the  testator,  and  the  executor  filed  this  bill  for 
instructions. 


APPEALS  liN  EaUlTY.  555 


Columbia,  May,  1860. 

The  single  question  made  by  tiie  pleadings,  and  submitted 
to  the  Chancellor  on  circuit,  was  as  to  the  proper  construc- 
tion of  A.  A.  1789,  sec.  9,  (5  Stat.,  107,)  which  is  in  the  fol- 
lowing words,  viz: 

''^»d  be  it  further  enacted,  by  the  authority  afonv^aid, 
That  if  any  child  should  die  in  the  lifetime  of  the  futlu^  or 
mother,  leaving  issue,  any  legacy  given  in  the  last  will  of 
such  father  or  mother  shall  go  to  such  issue,  unless  such 
deceased  child  was  equally  portioned  with  the  other  children 
by  the  father  or  mother  when  living." 

DuxKiN,  Ch.  By  the  ancient  Act  of  distributions,  A.  A. 
1712,  (2  Stat.,  523,)  it  was  provided,  among  other  things,  that 
the  surplus  of  the  intestate's  estate  should  be  distributed 
one-third  to  the  widow,  and  the  residue,  in  eijual  portions, 
among  the  children,  and  such  persons  as  legally  represent 
such  children,  "in  case  any  of  the  said  children  be  then 
dead,"  unless  the  child  has  been  advanced.  In  the  same 
manner,  it  is  provided  by  the  A.  A.  1791,  (5  Stat.,  162,)  that 
if  the  intestate  shall  leave  a  widow,  and  one  or  more  chil- 
dren, the  widow  shall  take  one-third,  and  the  remainder  be 
divided  between  the  children,  (if  more  than  one,)  the  issue 
of  a  deceased  child  taking  among  them  the  share  of  their 
parent.  A  like  beneficent  spirit  is  ujanifested  by  the  Act  of 
1789,  in  securing  to  (he  issue  of  the  child  of  the  testator,  the 
bounty  which  was  intended  for  (he  parent.  Any  legacy 
given  in  the  last  will  of  a  father  or  mother  to  a  child,  shall  go 
to  the  issue  of  such  child,  if  the  child  should  die  in  the  life- 
time of  the  parent;  the  Act  is  remedial.  The  object  is  to 
secure  to  the  offspring  what  was  given  to  the  ancestors;  but 
whicli  gift  could  not  take  effect  by  reason  of  (he  death  of  the 
ancestor.  All  the  legislative  proceedings  look  to  what  is  (o  be 
done  on  the  dea(h  of  the  testator  or  intestate;  and  all  mean 
what  is  expressly  declared  by  the  Act  of  1712,  (hat  "in  case 
any  of  the  children  be  then  dead,"  the  issue  of  such  de- 
ceased child  shall  take,  among  them,  the  share  of  the  estate 


556  APPEALS  IN  EaUITY. 

Pegiies  vs.  Pegues. 

to  which  the  parent  would  have  been  entitled,  if  he  had  sur- 
vived the  testator. 

The  Court  is  of  opinion  that  the  issue  of  Malachi  Pegues, 
deceased,  are  entitled  to  represent  their  parent,  and  to  take 
the  legacies  given  to  him  under  the  second,  and  also  under 
the  residuary  clause  of  the  testator's  will,  and  it  is  so  de- 
clared. 

It  is  ordered  and  decreed,  that  it  be  referred  to  the  com- 
missioner to  take  an  account  of  the  transactions  of  the  plain- 
tiff, and  that  he  report  thereon,  costs  to  be  paid  out  of  the 
estate  of  the  testator;  and  parties  to  he  at  liberty  to  apply,  at 
the  foot  of  this  decree,  for  any  further  order,  which  may  be 
necessary  for  carrying  the  same  into  effect. 

The  defendants,  Catherine  E.  Pegues  and  Emma  W. 
Pegues,  appealed  on  the  grounds: 

1.  That  the  death  of  Malachi  Pegues  occurring  before  the 
execution  of  the  will,  the  legacy  of  $1,500  in  the  second 
clause  of  the  said  will  is  not  saved  to  his  children  by  the 
Act  of  1789. 

2.  The  terms  of  the  Act  of  1789,  sec.  9,  do  not  include  the 
case  of  a  legacy  void  ab  initio. 

3.  The  children  of  Malachi  Pegues  have  failed  to  bring 
themselves  within  the  terms  of  the  Act,  by  showing  that 
their  father  was  not  "equally  portioned  with  the  other  chil- 
dren," by  his  father,  "when  living." 

4.  Even  if  the  pecuniary  legacy  of  $1,500  is  saved  to  the 
ciiildren  of  Malachi  Pegues  by  the  operation  of  the  Act  of 
1789,  the  benefits  of  that  Act  cannot  be  extended  so  as  to 
entitle  them  to  a  share  in  the  residuum,  under  the  twelfth 
clause  of  their  grand-father's  will. 

Inglis,  for  appellants. 

Townsend,  contra. 


AI'PEALS  IN  EaUITY.  557 

Coliimt)ia,  iMay,  1860. 

The  opinion  of  the  Court  was  delivered  by 

Johnstone,  Ch.  I  think  the  construction  which  has  been 
generally  put  upon  the  statute,  has  been  that  it  was  intended 
to  prevent  the  consequences  of  lapse  arising  from  the  death 
of  the  legatee  after  the  execution  of  the  will. 

The  language  of  the  statute,  although  very  loose,  seems  to 
bear  evidence  of  such  an  intention.  It  contemplates  the  case 
of  a  legacy  given  : — that  is,  a  provision  made  for  the  child  of 
such  a  character  as  would  be  valid  if  the  will  should  come 
fortlnvitli  into  operation.  Such  a  legacy  being  given,  the 
statute  goes  on  to  provide,  that  if  the  child  (thus  provided 
for)  should  die,  then  the  \egSLcy  given  to  him  shall  go  to  his 
issue — unless,  &c.  This  language  seems  to  be  intended  to 
describe  a  case  (not  uncommon),  where  a  legatee  s/ioii/d  hap- 
pen to  die,  after  the  execution  of  a  will  in  his  favor,  by 
which  casualty  his  personal  enjoyment  of  the  intended 
bounty  would  be  frustrated.  I  can  hardly  suppose  the  legis- 
lature contemplated  the  case  of  a  man's  giving  a  legacy  to  a 
dead  child — or  that  it  intended  to  remedy  the  effect  of  such 
an  absurdity. 

It  may  be  very  well  conceived  that  it  intended  to  make 
good  a  legacy  which  had  become  void,  without  going  the 
length  of  supposing  it  intended  to  give  effect  to  one  which 
was  void  ah  initio. 

There  is  room  for  another  remark  upon  the  statute.  It 
provides  that  the  legacy  to  the  child  shall  be  made  good  to 
the  child's  issue, "  unless  sucli  deceased  child  was  equally 
portioned  with  the  other  children,  by  the  father  or  mother" 
(who  made  the  will)  "  when  living."  Advancements  are,  by 
law,  to  be  taken  into  consideration  only  in  cases  of  intestacy. 
A  testator  may  make  what  provision  he  pleases  among  his 
children, — though  it  result  from  gifts,  previously  made  by  him 
aliunde  the  will,  that  he  has  dealt  unequally  by  them.  The 
legatee  in  this  casi;  would  have  taken  the  whole  ol  his  lega- 
cies, mentioned  in  the  will,  had  he  been  alive  when  the  will 
was  made,  and  had  he  survived  his  fattier.     When  the  stat- 


558  APPEALS  IN  EaUITY. 

Pegiies  V.I.  Pegues. 

lite  gives  his  legacies  to  his  children  upon  condition  that  he 
has  not  been  fully  advanced;  does  it  not  refer  to  advance- 
ments tnade  after  the  will;  and  which  may  be  considered  as 
an  eqnitable  satisfaction  of  the  legacies  it  contains  ?  And  if 
so,  does  it  not  follow,  that  it  contemplated  the  case  of  the 
legatee  being  in  esse  at  the  date  of  the  will  ? 

It  is  ordered,  that  the  decree,  so  far  as  it  adjudges  the  lega- 
cies provided  in  the  second  and  residuary  clauses  of  the  will 
for  Malachi  Pegnes,  to  his  children  and  issue,  be  set  aside 
and  reversed  ;  and  it  is  decreed,  that  said  issue  and  children 
are  not  entitled  to  the  same  or  any  part  thereof. 

Ordered,  that  the  cause  be  remanded  to  the  Circuit  Court. 

Wardlaw,  J.,  concurred. 

O'Neall,  C.  J,,  said — I  dissent,  and  concur  in  Chancellor 
Dunkin's  decree. 

Decree  reversed.  '  ' 


A.  P  P  I^  N  D  I  X 


John  Fketwell  and  others?'*.  Alfred  M.  Neal  and  others.* 

JVills  and  Tcslanicnts — Executors — Estate  for  Life — ,^fi- 
se?it — Evidence— Judi^meut — Sheriff's  Sale — Purchaser  for 
valuable  consideration  without  Notice — Lapse  of  Time. 

Where  the  testator  gives  an  estate  for  life  in  a  slave,  and  directs  that,  after  the 
death  of  ihe  tenant  for  life,  the  slave  be  sold  and  equal  distrilnition  of  the  pro- 
ceeds made  among  certain  persons,  an  assent  by  the  executor  to  the  legacy  to 
the  tenant  for  life,  does  not  divest  him  of  the  remainder— the  estate  in  remain- 
der, with  power  to  sell  and  distribute,  remains  in  the  executor. 

Where  the  testator  gave  his  plantation  and  two  slaves  to  his  wife  for  life,  and 
the  wife  and  children  remained  u|)on  the  plantation  for  several  years,  but  it 
was  under  the  control  and  management  of  the  executor,  who  disposed  o(  the 
crops  and  paid  the  debts  with  the  proceeds,  held,  that  there  was  not  sufficient 
evidence  of  an  assent  to  the  legacy  to  the  wife. 

A  judgment  in  Georgia  against  an  executor  as  executor,  to  be  levied  of  the 
goods  and  chattels  of  the  testator,  founded  on  a  debt  contracted  by  the  execu- 
tor after  the  death  of  the  testator,  though  irregular  according  to  the  course  of 
procedure  in  this  State,  will,  under  the  Constitution  and  Act  of  Congress,  be 
respected  by  the  Courts  of  this  State,  as  a  valid  judgment  ;  and  a  sale  under 
it  of  the  goods  of  the  testator  will  be  upheld. 

A  Sh»?rifr's  sale  o(  a  negro,  luade  in  Georgia,  in  1S30,  proved  by  parol,  without 
production  of  the  execution  or  the  return  of  sale  by  the  Sherirt". 

Where  there  have  been  several  successive  sales  of  slaves  subject  to  an  equity, 
if  any  one  of  the  purchases  was  made  for  valuable  consideration  and  without 
notice,  that,  and  all  the  subsequent  purchases,  will  be  good. 

Great  lapse  of  lime,  held,  strongly  to  support  a  defence,  not  only  in  supplying 
lost  papers,  but  also  in  raising  the  presumption  that  no  wrong  was  committed. 

BEFORE  WARDLAW,  CH.,  AT  ANDERSON.  .TUNE,  IS-SS. 

Tlip  facts  of  this  case  arc  stated  in  the  circuit  decree. 
Wardlaw,  Ch.     John   Frelwell  filed   the  original    bill    in 

♦  This  case  was  decided  in  the  Court  of  Appeals,  at  May  Term,  IS.TO.  It  was 
mislaid  when  the  cases  of  that  Term  were  published  or  il  would  have  appeared 
among  them.  Il  is  too  important  to  be  omitted  altogether,  and  is  now  in«ertcd 
as  an  appendix. 


500  APPENDIX. 


Fretwell  i<s.  Neal 


this  case,  January  23,  1856,  in  behalf  of  himself  and  his 
brother  James,  and  liis  sisters  (with  their  husbands)  Nancy, 
wife  of  William  H.  Kelly,  Julia,  wife  of  Edward  Cobb, 
Amanda,  wife  of  John  Burrow,  Betsey  or  Elizabeth  Mims, 
widow,  and  Sally,  wife  of  Benjamin  Scott,  against  the  defend- 
ant Alfred  M.  Neal,  claiming  the  specific  delivery  of  the 
slaves  Sarah  and  her  issue,  now  numbering  eight,  for  the 
purpose  of  partition  among  the  legatees  of  William  Fretwell, 
deceased.  By  amendment  of  the  bill,  James  Fretwell,  Cobb 
and  wife.  Burrow  and  wife,  and  Scott  and  wife,  were  made 
plaintiffs,  and  the  heirs  at  law  of  Daniel  Fretwell  and  Wil- 
liam Fretwell,  Jr.,  other  legatees  stated  to  be  dead,  as  also 
Elizabeth  Mims,  were  made  defendants.  Perhaps  the  repre- 
sentatives of  Daniel  and  William  are  the  proper  parties,  as 
these  decedents  may  have  left  debts. 

By  another  amendment  John  B.  Watson  was  made  a 
defendant,  and  charged  as  a  confederate  of  Neal,  but  as  the 
proof  of  confederacy  failed,  it  is  ordered  and  decreed  that  the 
bill  be  dismissed,  as  to  the  said  John  B.  Watson. 

The  claim  is  made  under  the  will  of  William  Fretwell, 
lately  of  Green  county,  Georgia,  bearing  date  August  22, 
1822,  and  admitted  to  probate  in  said  county  on  November 
13,  1822:  of  this  will  Anna  Fretwell,  wife,  and  James  Fret- 
well, son  of  said  William,  were  appointed  executors,  and 
said  James  qualified  as  executor  on  said  November  13,  1822. 
By  this  will,  in  2  clause,  testator  gave  to  his  wife  for  life,  the 
plantation  whereon  he  resided  and  the  slave  Sarah,  with  a 
negro  man  Green;  and  in  3  clause,  directed  that  at  the  death 
of  his  wife,  the  plantation  and  said  negroes  should  be  sold, 
and  equal  distribution  made  among  his  children.  James, 
Nancy,  William,  John,  Julia,  Sally,  Betsey,  Amanda  and  Dan- 
iel;  and  testator,  by  4  clause,  gave  to  his  son  Cullen,  four 
negroes;  by  5  clause,  gave  a  negro  woman  Rachel  and  her 
youngest  child,  Marcus,  to  his  daughter  Nancy,  whenever  she 
should  marry,  provided  that  any  increase  of  the  negro  woman 
before  Nancy's  marriage  should  go  to  the  benefit  of  the  fam- 


APPENDIX.  -  561 


Columbia,  May,  IS^O. 


ily;  by  6,7,8  and  9  clauses,  be  gave  to  bis  cbildren  William, 
Jobn,  Julia  and  Sally,  eacb,  two  negroes ;  by  10  clause, 
directed  tliat  bis  cbildren  Betsey,  Amanda  and  Daniel,  sbould 
eacb  bave  two  negroes  from  tbe  increase  of  the  negroes  if 
sufficient,  and  if  not,  tbat  tbe  deficiency  sbould  be  supplied 
by  tbe  sale  of  any  property  not  otherwise  disposed  of,  namely; 
Bob,  Mary  and  Fanny,  and  their  increase  at  tbe  time  of  tbe 
children  marrying  off,  or  becoming  of  age;  by  11  clause, 
directed  that  his  wife  "should  keep  Bob,  Mary  and  Fanny, 
and  all  tbe  stock  of  every  description,  and  all  tbe  farm- 
ing utensils  on  tbe  plantation  for  the  support  of  her  and 
the  children  so  long  as  they  remain  minors;''  and  by  12 
clause,  he  gave  to  his  son  James,  a  horse  to  be  worth 
$100,  a  good  saddle  and  bridle,  and  also  $800,  to  be  paid 
from  the  next  crop.  Tbe  chattels  of  testator  were  appraised 
February  8,  1823,  at  tbe  valuation  of  $7,214,  including 
Sarah,  at  tbe  price  of  $450.  No  sale  of  tbe  chattels  was 
made  by  executor.  On  March  8,  1824,  James  Fretwell  made 
a  return  to  the  Court  of  Ordinary  for  Green  county,  of  his 
transactions  on  the  estate,  wbicb,  with  some  additions  for 
subsequent  years,  was  examined  and  ap|)roved  at  January 
term,  1830,  and  exbibited  receipts  to  the  sum  of  $2,700  67, 
(of  which  $1,974  02  was  from  the  proceeds  of  tbe  sale  of 
cotton,)  and  payments  to  tbe  sum  of  $2,659  47,  of  which, 
many  were  for  the  renewals  of  notes  in  bank. 

It  appears  by  exhibit  B,  of  defendant  Neal's  answer,  which 
although  not  strictly  proved,  commits  him  at  least  as  an 
admission,  tbat  James  Fretwell,  as  executor,  on  February  27, 
1824,  executed  a  power  of  attorney  to  bis  brother  Cullen, 
empowering  him  to  transact  and  manage,  in  tbe  absence  of 
said  James,  all  business  pertaining  to  the  estate  of  testator 
and  particularly  to  sell  and  transfer  any  property  of  tbe 
estate  wbicb  executor  could  sell  and  transfer,  to  pay  and 
extinguish  all  debts  of  the  estate,  and  for  this  purpose  to 
borrow  or  advance  money. 

On  Aiigust  IG,  1828,  Cullen  Fretwell  commenced  suit  in  the 
87 


562  APPENDIX. 


Fretwell  vs.  Neal. 


Superior  Court  for  Green  county,  against  said  Jatnes  Fretwell, 
as  executor,  counting  for  money  advanced  and  employed  for 
the  use  of  said  estate,  and  for  the  legacy  to  said  James,  sold 
and  assigned  to  said  Ctilien,  James,  as  executor,  accepted 
service,  and  at  March  term,  1829,  confessed  judgment  for 
$2,198  55  and  costs;  and  on  May  15,  1829,  judgment  was 
entered  for  said  Cullen  against  said  James,  as  executor,  for 
the  sum  so  confessed,  and  $10  25  cost,  "to  be  levied  of  the 
goods  and  chattels,  lands  and  tenements  of  William  Fret- 
well, deceased,  in  the  hands  of  his  executor  to  be  adminis- 
tered, if  so  much  to  be  found,  if  not,  then  of  the  goods  and 
chattels,  lands  and  tenements  of  the  defendant,  James  Fret- 
well." 

On  December  23,  1S2S,  James  Fretwell,  styling  himself 
"executor  of  William  Fretwell,  deceased,"  gave  his  promis- 
sory note  to  Cullen  Fretwell,  or  order,  for  $633,  "loaned 
money;"  on  January  2,  1S29,  Cullen  sued  out  process,  and 
declared  on  said  note  against  James  as  executor;  on  January 
7,  1S29,  James,  as  execulor,  accepted  service  of  process;  at 
September  term,  1829,  a  verdict  was  given  for  the  sum  men- 
tioned in  said  note,  with  interest  and  costs,  and  on  November 
5,  1829,  a  judgment  was  entered  for  |6S7  12,  "to  be  levied 
of  the  goods  and  chattels,  lands  and  tenements  of  William 
Fretwell,  deceased,  in  the  hands  of  the  defendant  as  execu- 
tor, if  there  be  so  much  to  be  found,  if  not,  then  of  the  indi- 
vidual goods  and  chattels  of  the  defendant."  It  does  not 
appear  by  record  that  executions  were  issued  on  these  judg- 
ments, or  that  anything  was  done  towards  their  satisfaction  ; 
but  (here  is  prima  facie  proof  of  the  existence  and  loss  of  the 
executions,  and  that  under  them,  the  sheriff  sold  Sarah  and 
other  property  of  testator's  estate  to  Cullen  Fretwell,  in  the  year 
1830.  Before  this  time  Sarah,  with  the  other  chattels,  had 
remained  on  the  plantation  occupied  by  the  widow  and  fam- 
ily, but  it  seems  the  executor  controlled  the  crops  of  cotton. 
On  May  3,  1831,  Cullen  Fretwell  sold  and  transferred  by  bill 
of  sale  to  Alfred  M.  Neal,  the  slave  Sarah,  described  as  about 


APPENDIX.  563 


Columbia.  Mny,  1859. 


thirty-five  years  old,  with  hi^r  two  children,  Mary,  ahont  two 
years  old,  and  Rachel,  four  weeks  old,  for  a  sum  paid  of  $465, 
a  fair  but  rather  low  price.  At  the  time  of  this  transfer,  and 
for  fifteen  years  afterwards,  Neal  was  a  resident  in  Elhort 
county,  Georgia,  and  before  the  sale  for  two  or  three  years  he 
had  frequently  visited  the  family  of  testator.  For  the  last 
twelve  years  he  has  resided  in  Anderson  district;  he  has 
been  in  possession  ever  since  the  purchase  of  these  slaves, 
and  they  are  now  worth  $3,000  or  more.  About  the  time 
the  bill  was  filed,  hearing  of  the  claim  set  up,  he  secreted 
himself  and  the  slaves  for  a  few  days,  and  actually  sold  the 
slaves  to  one  Dooley,  of  Georgia,  but,  a  few  days  afterwards, 
he  botight  the  slaves  again  at  an  advance  of  $200,  on  the 
price  paid  to  him,  and  gave  the  bond  to  the  sheriff,  which 
had  been  ordered  on  a  special  injunction  granted  by  the 
commissioner.  After  the  death  of  testator,  his  widow  re- 
mained for  some  years  in  Green,  and  then  removed  to  Pike 
county,  where  (or  in  Carroll)  she  died  in  May,  1S52. 

Defendant  Neal,  in  his  answer,  professes  to  be  uninformed 
as  to  the  material  facts  stated  in  the  bill,  and  recpiires  proof 
to  be  made  of  tliem  ;  and  pleads  purchaser  for  value  without 
notice  of  claim  alleged,  and  also  the  statute  of  limitations. 

I  have  stated  tfie  important  facts  in  the  causp  as  I  under- 
stand the  evidence,  and  for  any  omission  or  mistake,  I  refer 
for  correction  to  the  voluminous  documents  and  testimony 
produced. 

At  the  hearing,  some  doubt  was  suggested  by  me  of  the 
sufficiency  of  the  proof  of  the  will  as  an  instrument  of  title, 
by  mere  exemplification  of  the  fi)reign  probate,  without  pro- 
bate in  this  S.ate;  but  this  doubt  has  been  removed  by 
refl<^ciion.  The  case  is  within  the  Art  of  Congress  of  1790, 
passed  in  pursuance  of  the  1  Sec,  4  Art.  of  the  Constitution 
of  the  United  States.  Besides,  a  duly  authenticated  copy  of 
an  ancient  record  is  good  proof  in  itself  Moreover,  the 
exemplification  was  prol>ably  admissible   in  evidence  under 


5(54  APPENDIX. 


Fretwell  vs.  Neal. 


our  Act  of  1S23,  6  Stat.,  209,  as  the  requisite  notice  had  been 
given. 

Some  doubt,  too,  was  entertained  as  to  the  jurisdiction  of 
the  Court,  even  on  the  indulgent  views  suggested  in  Si?ns  vs. 
She/ton,  2  Strob.  Eq.,  221,  for  from  the  number  of  claimants 
there  could  be  no  other  delivery  of  the  slaves  than  by  distri- 
bution of  the  proceeds  of  sale,  and  the  insolvency  of  the 
defendant  is  not  alleged.  But  partition  is  an  extensive  field 
for  equity,  and  as  defendant  may  be  considered  as  entitled  to 
the  share  of  James  Fretwell,  at  least,  relief  may  be  afforded 
in  that  form,  where  specific  dehvery  is  sought.  Nix  vs. 
Harley,  3  Rich.  Eq.,  379. 

As  to  the  plea  of  purciiaser  without  notice,  I  think  that 
defendant  has  established  some  of  the  elements  of  this  plea. 
He  has  paid  a  fair  price  and  received  a  conveyance  from  one 
in  possession  of  the  chattels,  claiming  them  absolutely  under 
a  sale  by  the  executor  as  legal  owner.  It  may  be  that  Cullen 
Fretwell,  by  merely  giving  credit  on  his  execution,  did  not 
pay  his  money  in  that  strict  sense  which  is  necessary  to  the 
integrity  of  the  plea.  Williams  vs.  Hollingswo7'th,  1  Strob. 
Eq.,  103;  but  that  does  not  injuriously  aftect  a  purchaser 
from  him  who  did  pay  money.  Where  plaintiffs  claim  by 
legal  title,  and  seek  no  discovery  from  defendant  imperiling 
his  title,  this  plea  is  inapplicable.  Daniel  vs.  McCo?^d,  Rice 
Eq,,  330;  and  here  it  is  questionable  whether  such  discovery 
is  sought.  But,  in  my  opinion,  the  title  of  the  jilaintifTs  is 
merely  equitable,  and  although  equitable  owners  may  sue  in 
equity,  (Bush  vs.  Bush,  3  Strob.  Eq.,  131,)  this  plea  is  opera- 
tive when  proved  to  defeat  their  suits.  The  remainder  in 
the  slaves  specifically  after  the  life  estate  of  the  widow  is  not 
given  to  the  children  of  testator,  and  nothing  is  given  to 
them  but  shares  in  the  proceeds  of  sales  after  the  slaves 
shall  be  sold  as  directed.  It  has  not  been  satisfactorily  proved 
that  the  executor  assented  to  the  legacy  of  Sarah  and  deliv- 
ered her  to  the  life  tenant;  but  assuming  that  fact  for  the 
argument,  the  legal  title  of  the  executor  would  be  suspended 


d 


APPENDIX.  505 


Coliinibia,  May,  1859. 


only  during  (he  subsistonco  of  the  life  estate,  and  not  extin- 
gnislicd,  and  at  the  termination  of  the  interest  for  life  wonld 
be  revived  to  enabh'  him  to  perform  the  important  trnsl  of 
making  sale  and  tlistribntion.  The  will  here  does  not  ex- 
pressly charge  the  cxecntor  to  make  tlie  sale,  bnt  wherever  a 
will  directs  a  sale  and  fails  to  nominate  the  person  to  make 
it,  the  dnty  and  power  devolve  on  the  executor.  An  execu- 
tor's assent  to  a  legacy  so  as  to  vest  title  and  possession  in  a 
life  tenant  inherently  operates  for  the  benefit  of  the  remain- 
dermen. Finley  vs.  Hunter,  2  Strob.  Eq.,  208;  bnt  it  does 
not  change  the  character  of  their  estate  from  equitable  to  legal. 
Still,  the  defendant  Neal  must  fail  in  fliis  plea,  because  he 
had  notice  of  plaintiffs'  claim.  I  suppose  that  notice  to  the 
defendant  is  implied  by  law  from  the  probate  and  record  of 
the  will  in  the  ordinary's  office  of  the  State  of  his  domicil 
and  purchase.  E//is  vs.  Woods,  9  Rich.  Eq.,  19;  and  the 
circumstances  go  far  to  show  notice  in  fact.  Defendant  was 
intimate  in  the  family  of  testator,  and  familiar  with  tlic 
affairs  of  the  estate  before  his  purchase,  and  he  purchased 
from  one  of  the  sons.  On  his  bill  of  sale  he  indorsed  an 
assignment  to  one  Creswell  Neal,  on  January  29,  1832,  which 
is  unexplained,  and  probably  was  merely  colorable.  Cotem- 
poraneously  with  the  institution  of  the  suit,  he  conceals  him- 
self and  eloigns  the  slaves  for  a  time.  Possibly  this  course 
was  taken  from  ignorance  and  timidity,  but  more  naturally 
it  exhibits  distrust  of  his  title  from  information  long  previ- 
ously acquired.  I  suspect,  yet  I  cannot  safely  conclude,  that 
he  had  actual  notice.     This  plea  is  overruled. 

The  effect  of  the  lapse  of  time  as  a  bar  of  the  plaintiffs' 
remedy  remains  to  be  considered.  Defendant  has  been  in 
adverse  possession  of  the  slaves  for  nearly  twenty-five  years, 
without  any  counter  claim,  and  his  vendor  had  been  in  pos- 
session for  a  ye^r  or  more  previously.  The  tenant  for  life, 
whose  immediate  interest  was  disturbed,  lived  for  twenty-two 
years  after  dispossession  without  making  complaint,  and 
those   claiming,  upon   the  expiration   of  her  interest,  forbore 


506  APPENDIX. 


Fretwell  vs.  Neal. 


clamor  for  nearly  four  years  after  her  death.  Under  such 
circumstances,  all  reasonable  presumptions  should  be  made 
against  a  tardy  claim. 

It  can  hardly  be  contested  that  the  executor  of  testator's 
will,  sold  the  slave  Sarah  to  CuUen  Fretwell.  The  sale,  in 
form,  was  made  by  his  agent,  the  sheriff,  under  executions 
against  him.  It  is  said,  however,  that  tlie  sale  was  made  for 
the  private  debt  of  executor,  and  after  his  assent  to  the  legacy 
of  Sarah.  If  these  particulars  be  a^umed  as  true,  it  may  be 
safely  declared,  that  before  his  assent  to  a  legacy,  an  executor 
has  absolute  power,  at  law,  to  alien  the  assets  of  a  testator,  in 
satisfaction  of  his  private  debt,  and  that  creditors,  much  less 
legatees,  cannot  follow  the  assets  unless  there  be  positive 
fraud  in  the  creditor,  in  accepting  such  disposal;  and  that  in 
equity  an  executor  cantiot  make  a  valid  salo  of  the  assets  in 
payment  of  his  own  debt,  where  the  purchaser  knows  the 
assets  to  belong  to  the  estate  of  testator,  for  the  purchaser  is 
necessarily  involved  by  the  transaction  itself  in  participation 
in  a  breach  of  trust;  and  that  in  both  Courts,  after  the  assent 
of  the  executor  to  a  legacy,  the  title  vests  in  tlie  legatee  and 
the  control  of  the  executor  ceases.  So  that  not  even  creditors 
can  pursue  the  property  bequeathed,  by  executions  subse- 
quently obtained  against  the  executors.  Wms.  on  Ex'ors, 
673—4  and  tlie  cases  there  cited  ;  Jllexander  vs.  Williams, 
2  Hill,  522  :  McMullen  vs.  Brown,  2  Hill  Ch.,  459. 

There  is  no  doubt  that  Cullen  Fretwell  knew  that  Sarah 
and  the  other  assets  sold  to  him,  belonged  to  the  estate  of 
testator;  but  that  the  sale  was  made  for  the  private  debt  of 
executor,  and  after  his  assent  to  the  legacy,  require  to  be 
proved,  and,  in  my  judgment,  neither  particular  is  proved. 
As  to  the  former,  if  I  were  now  called  upon  to  adjudge  the 
matter  as  an  open  question,  I  should  probably  determine  that 
at  least  to  the  extent  of  Cullen's  purchase  from  James  of  his 
legacy,  and  of  the  amount  of  James'  note  signed  as  executor, 
without  proof  further,  that  the  judgments  were  obtained  for 
the  private  debts  of  James  ;  but  the  question  is  not  open  ;   it 


APPENDIX.  507 


Columbia,  Mjiy,  ISW. 


has  been  solemnly  considered  and  adjudged  by  a  competent 
foreign  C  )nrt  of  the  domicil  of  the  ])arties,  that  the  debts  were 
those  of  testator,  to  be  levied  from  the  assets  of  the  estate. 
This  Conn  is  not  now  at  liberty  to  controvert  this  judgment; 
on  the  contrary,  by  the  reqnirement  of  the  F'edcral  Constitn- 
tion,  is  bound  to  give  to  it  dne  faith  and  credit,  iiesides,  the 
judgments  are  not  in  conflict  with  any  statute  or  declared 
policy  of  South  Carolina;  indeed,  here,  debts  in  form  those  of 
the  executor  individually,  may  be  declared  in  the  proper  forum 
to  be  debts  entitled  to  satisfaction  from  the  assets  of  his  tes- 
tator, upon  proper  suppletory  averments  and  proof:  as  tlie 
Superior  Court  in  Georgia  possesses  and  exercises  general 
jurisdiction,  both  in  law  and  equity,  it  must  be  presutiied, 
especially  when  the  presumption  is  corroborated  by  great 
lapse  of  time,  that  the  necessary  suppletory  proof  was  olfered. 
Then  I  am  not  satisfied  of  the  executor's  assent  to  the  legacy 
of  Sarah.  There  is  no  express  proof  of  assent,  and  assent 
cannot  be  implied  from  the  circumstances  in  evidence. 

Sarah  and  all  the  chattels,  none  of  tliem  having  been  sold 
at  any  general  sale  by  executor,  remaiiKnl  after  the  death  of 
testator  on  the  plantation  where  he  resided  in  his  lifetime  in 
tlie  possession  of  his  surviving  family  for  seven  or  eight  years 
perhaps,  but  the  executor  retained  title  and  control  the  wfmie 
time,  and  actually  appropriated  the  crops  up  to  the  year  1829 
in  payment  of  the  debts  of  testator  and  expenses  of  the  ad- 
ministration. This  is  the  common  course  of  representatives 
of  an  estate  (where  the  property  is  directed  to  be  kept  together) 
until  time  shall  fully  develope  the  exigencies  of  the  decedent's 
affairs;  it  is  rarely  sufficient  proof  of  an  executor's  assent  to 
a  legacy  to  a  member  of  a  common  family  that  maybe  in  the 
enjoyJTient  of  the  property.  It  may  be  that  this  estate  was 
much  mismanaged,  and  some  of  the  witnesses  express 
strongly  their  belief  that  the  exigencies  of  the  estate  did  not 
require  the  alienation  of  its  tangi})le  assets,  but  they  stale  no 
fact  compelling  like  conviction  oti  the  part  of  others. 

From   the  great  lapse  of  time,  we  are  bound  to  presume, 


568  APPENDIX. 


Frelwell  vs.  Neai. 


where  the  contrary  is  not  proved,  that  Sarah  was  not  deliv- 
ered to  the  tenant  for  hfe  for  her  own  use  and  as  trustee  of 
the  remaindermen  :  and  if  so  delivered,  that  the  tenant  sur- 
rendered her  interest  for  life  and  that  with  her  assent  and 
that  of  the  remaindermen,  the  property  was  sold  absolutely 
in  satisfaction  of  the  debts  of  the  estate.  Riddlehover  vs. 
Kinard,  1  Hill  Ch.,  378.  I  conclude  that  defendant  Neal 
is  protected  by  the  statute  of  limitations  and  the  lapse  of 
time.     It  is  ordered  and  decreed,  that  the  bill  be  dismissed. 

The  complainants  appealed,  and  now  moved  this  Court  to 
reverse  or  modify  the  decree,  on  the  grounds  : 

1.  Because,  it  is  respectfully  submitted,  that  his  Honor 
erred  in  decreeing  that  the  title  of  the  complainants  to  the 
negro  slaves,  Sarah  and  her  issue,  (the  subject-niiUter  of  this 
suit,)  under  the  will  of  William  Fretwell,  deceased,  was  an 
equitable  instead  of  a  legal  title. 

2.  Because,  it  is  respectfully  submitted,  that  his  Honor 
erred  in  decreeing  that  the  proof  was  not  sufficient  to  satisfy 
the  Court,  that  the  executor  of  William  Fretwell,  deceased, 
had  assented  to  the  legacy  of  the  slave  Sarah,  to  the  life 
tenant,  Mrs.  Ann  Fretwell,  v/hen  it  is  submitted  that  the 
evidence  on  that  point  is  i^ull  and  conclusive. 

3.  Because,  it  is  resi»ectfully  submitted,  that  his  Honor 
erred  in  decreeing  that  the  judgments  obtained  by  Cullen  A. 
Fretwell  vs.  James  Fretwell,  executor  of  Wm.  Fretwell,  were 
conclusive  of  all  matters  purporting  to  have  been  decided 
thereby,  against  these  compiainants,  when  it  is  submitted 
that  the  complainants  were  neither  parties  nor  privies  to  the 
record,  nor  in  any  way  affected  by  the  said  judgments. 

4.  Because,  it  is  respectfully  submitted,  that  the  evidence 
was  sufficient  to  satisfy  the  Court  that  the  said  judgments 
were  collusive,  fraudulent  and  void,  founded  altogether  upon 
matters  arising  after  the  death  of  the  testator,  William  Fret- 
well, and  for  the  personal  obligations  of  the  executor. 

5.  Because,  it  is  respectfully  submitted,  that  there  was  not 


APPENDIX.  500 


Coliinil)ia,  May,  ISrjO. 


sntficieiit  proof  that  the  said  slavo,  Sarah,  was  ever  sold  hy 
the  sheriti',  under  and  l)y  virtue  of  executions  against  the 
executor  of  William  Fretwell,  and  for  the  debts  of  the  said 
testator. 

6.  liecause,  it  is  respectfully  submitted,  that  his  Honor 
erred  in  decreeing  that  lapse  of  time  and  the  statute  of  limi- 
tations was  a  bar  to  the  remedy  sought  by  complainants, 
when  the  bill  was  filed  within  four  years  after  the  acciual  of 
the  rights  of  complainants,  and  when  the  defendant  had  con- 
structive notice  of  their  claim  at  the  time,  and  before  became 
into  |)ossession  of  the  said  slaves. 

7.  Because,  it  is  respectfully  submitted,  that  the  decree  is, 
in  other  respects,  contrary  to  equity  and  justice. 

Harrison^  for  appellants. 

Reed,  contra. 

The  opinion  of  the  Court  was  delivered  by 

Johnston,  Ch.  For  my  own  part,  I  regard  it  as  of  little 
consequence  whether  tlie  executor  did  or  did  uo[  assent  to 
the  legacy  for  life  in  favor  of  the  widow.  If  he  did  assent, 
his  assent  could  divest  him  of  his  title  and  control  beyond 
the  life  estate,  only  in  the  event  that  the  slaves  were  be- 
queathed in  remainder.  Without  sncii  ulterior  disposition, 
they  reverted  to  the  executor,  on  the  death  of  the  life  tenant, 
for  administration,  according  to  the  powers  conferred  on  him 
by  the  will.  In  this  case,  the  testator  has  not  given  the  slaves 
in  remainder,  but  merely  directed  that  they  be  sold,  and  the 
proceeds  divided  among  his  children.  This  did  not  give 
the  slaves  to  the  children,  Ijut  merely  imparted  to  them  an 
equitable  interest  in  the  amount  f(U-  which  the  executor 
might  sell  them,  and  a  right  to  conifiel  him  to  make  such 
sale.  The  title  remained  in  the  executor,  subject  to  the  life 
estate  of  the  widow. 

But  the  Chancellor  has  concluded,  and,  as  we  think,  is 
warranted  by  the  evidence  in   his  judgment,  that  there  was 


>rO  APPENDIX. 


Fretwell  t^s.  Neal. 


no  assent;  and  the  consequence  is  that  the  slaves  remained 
in  the  hands  of  the  executor,  with  a  legal  title  on  his  part, 
and  were  liable  to  be  dealt  with  by  creditors  as  in  common 
cases. 

Then  as  to  the  judgment  obtained  in  Georgia  by  Cullen 
Fretwell.  The  Constitution  of  the  United  States,  (article  iv, 
sec.  1,  1  Stat.,  178,)  provides  that  "full  faith  and  credit  shall 
be  given,  in  each  State,  to  the  public  acts,  records  and  judi- 
cial proceedings  of  every  other  State.  And  the  Congress 
may,  by  general  laws,  prescribe  the  manner  in  which  such 
acts,  records  and  proceedings  shall  be  proved,  and  the  effect 
thereof"  Under  the  power  thus  conferred,  the  Congress,  by 
Statute  of  1790,  (Brev.  Dig.,  317,  1  Laws  of  the  United  States, 
115,)  enacted,  "  that  the  Acts  of  the  Legislatures  of  the  sev- 
eral States  shall  be  authenticated  by  having  the  seal  of  their 
respective  States  affixed  thereto.  That  the  records  and  judi- 
cial proceedings  of  the  Courts  of  any  State  shall  be  proved, 
or  admitted,  in  any  other  Court  within  the  United  States,  by 
the  attestation  of  the  clerk,  and  the  seal  of  the  Court  annexed, 
if  there  be  a  seal,  together  with  a  certificate  of  the  Judge, 
Chief  Justice,  or  presiding  Magistrate,  as  the  case  may  be, 
that  the  said  attestation  is  in  due  form.  And  the  said  records 
and  judicial  proceedings,  authenticated  as  aforesaid,  shall 
have  such  faith  and  credit  given  to  them  in  every  Court 
within  the  United  States,  f/j'  they  have,  \>y  law  or  usage, /?i 
the  Courts  of  the  State  from  whence  the  said  records  are,  or 
shall  be  taken.''' 

It  is  unnecessary  to  quote  the  numerous  cases  in  this  State 
in  which  our  Courts  have  given  conclusive  credit  to  the  au- 
thenticated judicial  records  of  other  States.  The  irregulari- 
ties of  such  proceedings  are  no  ground  for  disregarding 
them.  If  they  have  effect  as  evidence  in  the  State  where 
they  took  place,  though  they  can  have  no  direct  operation 
here,  we  are  bound  to  regard  them  as  good  judgments;  to 
accept  iheiii  as  evidence,  and  to  make  them  the  basis  of  such 


APPENDIX. 


Columbia,  May,  ISM. 


further  proceedings  as  the  parties  producing  them  may  claim 
and  be  entitled  to  in  our  Courts. 

We  find  before  us  a  judgment,  i)roperly  authenticated, 
rendered  in  Georgia  against  the  executor  of  Wuj.  Fretwell, 
and  expressly  made  leviable  out  of  the  goods  and  chattels  of 
the  testator.  Slaves  of  the  testator,  of  which  the  legal  title 
was  ill  the  executor,  were  sold  under  it.  Hut  we  are  re- 
quired to  look  into  that  judgment  and  declare  that  it  had  n^^ 
etfect  in  Georgia  to  render  these  slaves  liable.  We  cannot  do 
it.  We  have  no  evidence  to  slu;w  that  by  the  laws  of 
Georgia  the  judgment  was  either  void  or  voidai)le.  It  is  not 
enough  to  say  that  the  proceeding  may  contain  irregularities, 
or  that  upon  the  same  premises,  we  should  not  iiave  given 
such  a  judgment  here.  What  a  Court  of  Georgia  has  ad- 
judged, we  are  to  take  as  a  good  Georgia  judgment,  while 
that  judgment  remains  unreversed.  We  su|)pose,  in  the 
absence  of  any  proof  to  the  contrary,  that  were  the  judgment 
under  consideration  produced  in  evid(!nce  in  a  Georgia  Court, 
that  Court  would,  also,  regard  it  as  a  valid  judgment  ;  what- 
ever it  might  do  were  it  produced  on  an  ajiplication,  or  pro- 
ceeding, to  reverse  it,  or  set  it  aside.  Were  the  bill  b(?fore  us 
a  bill  to  reverse  it,  or  set  it  aside,  are  we  competent  to  do 
such  ati  act?  But  were  we  competent,  the  bill  seeks  no  such 
remedy;  and  we  could  not  set  aside  one  of  our  own  judg- 
ments, much  less  a  foreign  judgment,  collaterally. 

But,  it  is  objected  that  the  parties  seeking  remedy  in  this 
Court  were  not  parties  to  the  Georgia  proceeding,  and,  there- 
fore, are  not  bound  by  it.  They  were  not  parties;  but  if 
there  was  a  necessary  privity  between  them  and  the  exec- 
utor, who  was  a  party,  th(>y  are  concluded  by  the  judgment 
rendered,  while  that  remains.  It  would  be  an  alarming  doc- 
trine that  a  purchaser  of  estate  property,  under  a  subsisting 
judgment  against  the  executor,  which  judgment  ex|)ressly 
makes  that  property  liable,  has  not  obtained  a  good  title, 
simply  because  the  creditor  did  not  make  the  distriljutecs  or 
legatees  parties  to  his  suit,  but  sued  the  executor,  (not  being 


572  APPENDIX. 


Fretwell  vx.  Neal 


allowed  by  the  forms  of  law  to  sue  any  other)  for  his  debt. 
Every  day  furnishes  us  with  instances  in  which  the  executor 
necessarily  represents  distributees  and  legatees  in  such  suits; 
and  if,  under  such  proceedings,  a  devastavit  is  committed, 
the  remedy  must  be  against  the  executor,  unless  there  has 
been  some  colhision  with  the  creditor,  the  purchaser,  or  some 
other  person  ; — in  which  case,  though  a  bill  will  lie  against  all 
those  implicated  in  the  fraud,  it  must  be  (as  this  bill  is  not) 
framed  for  that  purpose.  The  matter  cannot  be  taken  up 
collaterally. 

But  again,  it  is  objected  that  the  proof  of  the  sale  by  the 
sheriff  was  not  sufHcient.  The  objection  points  to  the  non- 
production  of  the  execution,  and  the  return  of  sale.  There 
vras  certainly  no  proof,  from  the  record,  of  the  sale.  But 
there  was  ample  proof  by  parol,  that  the  sale  was,  in  fact, 
made  by  the  sheriff.  Mr.  Cone,  one  of  the  witnesses,  says, 
.that  though  by  the  law  of  Georgia  there  should  be  an  execu- 
tion and  return  of  sale,  there  is,  in  fact,  a  general  inattention 
by  the  officers  to  this  requisition.  Under  these  circumstances, 
and  the  fact  of  sale  being  made  out,  it  would  seem  unreason- 
able that  the  interests  of  the  purchaser  should  be  sacrificed, 
by  making  him  responsible  for  the  non-production  of  the 
papers  required  ;  over  which  he  never  had  any  control,  and 
which,  though  they  may  have  been  regularly  filed,  may  have 
been  lost  in  the  lapse  of  years  wliich  has  occurred  since  the 
sale  was  made. 

The  defendant  having,  according  to  the  foregoing  view, 
obtained  the  legal  title,  and  without  notice  of  any  equity, 
must  be  protected  in  this  Court.  If  Cullen  Fretwell  had 
notice,  that  does  not  affect  this  defendant;  the  well-recog- 
nized doctrine  of  equity  being,  that  wherever,  in  a  succession 
of  purchasers,  you  reach  one  who  is  innocent,  and  purchases 
in  ignorance,  the  title  is  thenceforth  sanctified. 

According  to  the  view  I  have  taken,  the  statute  of  limita- 
tions becomes  an  immaterial  question.  But  it  may  be 
material  to  observe,  that  the  great  lapse  of  time  which  has 


APPENDIX.  57:J 


Columbia,  May.  1859. 


occurred,  tends  very  much  to  .support  the  defendant's  case. 
This  is  true,  not  only  in  supplying  lost  papers,  but  in  raising 
the  presnmi»tion  that  there  was  no  wrong  committed.  If  the 
widow  saw  injustice  in  the  transactions  now  complained  of, 
it  is  singular  that  she  should  have  remained  silent  through 
the  many  years  that  elapsed  between  tiiese  transactions  and 
her  death. 

We  see  no  suflicient  ground  for  the  appeal,  and  it  is  or- 
dered, that  the  decree  be  affirmed  and  the  appeal  dismissed. 

DuNKiN  AND  Wardlaw,  CC,  coucurrcd. 

Decree  affirmed. 


574  APPENDIX. 


Lee  US.  Let 


JiNSKT  Lee  vs.   Charles  W.  Lee  and  others. 
Fraud — Statute  of  Frauds. 

B,  for  the  purpose  of  prosecuting  certain  trespassers  in  iiis  own  name,  received 
from  A  an  absolute  conveyance  of  a  tract  of  land,  under  a  verbal  promise  to 
reconvey  the  land  as  soon  as  the  purpose  for  which  the  deed  was  taken  should 
be  answered,  and  afterwards  fraudulently  refused  to  execute  a  reconveyance: 
Held,  that  B  was  not  protected  by  the  statute  of  frauds,  and  he  was  ordered  to 
execute  a  reconveyance,  according  to  the  terms  of  his  verbal  promise. 

BEFORE  DUNKIN,  CH.,  AT  SUMTER,  JUNE,  1858. 

This  case  will  be  sufficiently  understood  from  the  circuit 
decree,  which  is  as  follows: 

DuNKiN,  Ch.  The  plaintiff  is  a  spinster,  about  fifty  years 
of  age.  She  is  very  illiterate,  but  has  about  as  much  sense 
as  other  persons  in  her  position.  For  many  years  previous 
to  1S49,  and  for  some  years  subsequently,  she  and  her 
brother,  the  defendant,  Charles  W.  Lee,  resided  in  the  same 
house  with  tiieir  Either  and  mother.  Her  father  had,  by 
deed,  given  to  the  plaintiff  a  tract  of  land  containing  about 
two  hundred  and  two  acres,  and  which  was  alleged  to  con- 
stitute her  whole  estate.  She  worked,  and  cooked,  and 
washed,  botli  in  her  father's  lifetime,  and  while  she  lived 
with  her  brother,  the  defendant,  after  her  father's  death.  The 
land  given  her  by  her  father  was  detached,  and  one  John  A. 
Lee,  another  brother  of  hers,  had  trespassed  upon  it.  It 
became  necessary  to  bring  suit  against  him.  On  17th  Decem- 
ber, 1S49,  the  plaintiff,  for  the  alleged  consideration  of  $100, 
executed  to  her  brother,  the  defendant,  a  conveyance  of  the 
premises  in  fee.  Stephen  C.  Lee,  one  of  the  subscribing  wit- 
nesses to  the  deed,  and  on  whose  oath  it  had  been  originally 
proved  for  record,  testified,  that   "  prior  to  the  execution  of 


APPENDIX.  575 


Coliiiiibia,  November  and  December,  lSr)8. 


tlic  deed,  Charles  W.  Loe,  the  defendant,  told  him  that  he 
had  been  up  to  see  Col.  Moses,  about  John  A.  Lee's  trespass- 
ing upon  .linsey's.  the  plaintitT's,  land  ;  that  Col.  Moses  had 
told  him  that  he,  Charles,  could  not  commence  an  action 
without  a  colorable  claim  or  title  to  the  land  ;  Charles,  or  his 
father,  asked  witness  to  write  a  deed  from  Jiiisey  to  him, 
which  he  declined.  At  this  time,  or  soon  after,  Charles  told 
him  that  Jinsey  was  to  make  the  deed  to  him,  and  he  was  to 
bring  the  action."  This  witness  further  said  that  at  the  time  of 
the  execution  of  the  deed  (whicli  was  subsequently  prepared 
by  another  person),  "Jinsey  (the  plaintiff)  was  in  the  kitchen, 
and  some  one  called  her  into  the  house,  or  piazza.  She 
came,  and  asked  what  was  wanted  of  her;  Charles,  or  his 
fatlier,  or  some  one,  said  they  wanted  her  to  sign  that  deed; 
she  said  she  could  not  write  her  name,  but  would  have  to 
make  her  mark;  Wyatt  Nettles  wrote  her  name,  slie  made 
her  mark.  She  did  not  say  a  word,  as  he  recollects,  and  then 
went  back  to  the  kitchen."  Samuel  Tunstall,  a  deputy  sur- 
veyor residing  in  the  neighborhood  of  the  parties,  testified : 
"That  Charles  W.  Lee  (the  defendant)  came  to  him  to  get 
him  to  write  a  deed  for  him  ;  witness  asked  him  if  he  was 
buying  or  selling  land  ;  he  said  no,  he  wanted  a  deed  for  the 
purpose  of  sueing  his  brother,  John,  for  trespassing  on  Jin- 
sey's  land;  witness  told  him  she  might  have  made  him  a 
power  of  attorney,  but  he  said  his  lawyer  told  him  he  must 
have  a  dcf^d,  and  he  insisted  on  witness's  writing  one;  wit- 
ness asked  him  what  consideration  he  must  slate  in  it; 
defendant  said  he  did  not  know  of  any;  witness  told  him  a 
deed  was  not  of  any  account  unless  there  was  some  amount 
staled  in  it;  defendant  seemed  like  he  was  at  a  loss;  witness 
told  him  he  would  put  in  §100;  witness  was  then  writing 
the  deed;  defendant  said  very  well.  He  (defendant)  carried 
the  deed  off." 

It  is  not  proposed  to  recapitulate  the  evidence,  nearly  all 
which  is  in  writinij,  atid  very  carefully  reported  hy  the  com- 
missioner.    The  agreement  and  understanding  of  the  partitas, 


576  APPENDIX. 


Lee  vs.  Lee. 


proved,  as  the  Court  thinks,  most  ahnndantly,  by  the  testi- 
mony, was  that  the  deed  concocted  for  tlie  purpose  of  maintain- 
ing the  action  against  John  A.  Lee,  was  to  be  so  used  by  the 
defendant  in  her  behalf,  and  that  at  the  termifiation  of  the 
suit,  he  would,  at  her  request,  reconvey  the  premises.      The 
suit  was  accordingly  instituted  by  the  defendant,  in  his  own 
name,  against  John  A.  Lee,  for  trespass,  &c.     How  long  the 
suit  continued,  or  at  what  time  it  was  ended,  does  not  appear 
from  the  evidence,  but  it  was  finally  compromised   between 
the  parties.     So  far  as  the  Court  can  gather  from  the  evidence, 
twenty  acres  of  the  land   was  given  up  to  John  A.  Lee,  and 
each  party  was  to  pay  his  own  costs.    But  in  lS54,the  plain- 
tiff agreed  to  sell  the  land,  or  a  part  of  it,  to  Simon  Lee,  who 
had  married   her  sister  Ann,  and   he  took  possession  of  the 
premises,  under  his  bargain  with  the  plaintiff.     In  the  latter 
part  of  that  year  (as  proved  by  the  witness,  David  Lee,)  the 
plaintiff  "applied  to  the  defendant  for  a  reconveyance  of  her 
land,  as  he  was  to  do.     He  told  her  he  would  do  it — that 
Tunstall  liad  written  the  other  deed,  and  he  would  go  and  get 
him  to  write  another  deed  back  to  her — that  a   few  evenings 
after  this,  Charles  came  over  to  witness's  house,  and  proposed 
to    witness    that    they  sliould    buy   the   land   from    plaintiff. 
Next  morning  they  went  to  her,  and  Charles  asked  her  if  she 
would   sell   ilie   land.      He   said,  if  she   would,   he   (Charles) 
would   buy  one  half,  and  witness  would   buy  the  other.     She 
(plaintiff)  said  she  would  not  sell  it  to  turn  off  her  sister  Ann, 
who   lived  on  the  place.     Charles  replied,  that  Connell  Lee 
stated   tiiat  Simon  Lee,  Ann's  husband,  had  said   that  after 
he  had  cut  off  the  tun  timber,  he  was  going  to  leave.     Plain- 
tiff said  then,  that  if  Simon  was  going  to  leave  the  place,  that 
if  Charles  and   witness  would  give  her  note  and  security  for 
the   price   of  the   land,  she  would   sell   it   to  us.     Simon,  not 
being  entirely  willing  to  leave,  Charles  made  another  propo- 
sition to  her,  to  wit:  that  he  would  give  her  a  deed  back  for 
one-half  of  the   land,  and   he  would  give  her  his   note  and 
security  for  the  half  adjoining  him  at  $2  per  acre.    She  agreed; 


APPENDIX.  577 


Columbia,  November  and  December,  1S58. 


and  by  mutual  agreement,  Tnnstall  came  and  ran  out  the 
land  into  two  halves,  and  made  a  plat  (plat  exhibited  of  the 
half  that  was  to  be  conveyed  back  to  the  plaintiir.)  This  (he 
afterwards  said)  was  the  half  on  which  Simon  Lee  was  then 
living,  and  tiiat  the  plaintiff  had  put  him  upon  it.  Tnnstall 
wrote  the  deed.  Charles  kept  promising  to  sign  the  deed,  but 
never  did  so,  nor  did  he  give  the  note  and  security."  In  June 
following,  1855,  witness,  at  the  request  of  his  sister,  went  to 
the  defendant  to  get  him  to  make  the  deed  back  to  her.  He 
said  he  would  do  it.  This  was  before  Charles'  marriage. 
(Defendant,  Charles  W.  Lee,  in  July,  1855,  married  the 
daughter  of  his  co-defendant,  Wyatt  J.  Nettles.)  In  August, 
the  defendant  upbraided  liim  (witness)  for  telling  a  pack  of 
news  about  the  transaction,  between  him  and  the  plaintiff, 
and  said,  since  I  had  told  about  it,  he  did  not  intend  to  make 
a  deed  back  to  her,  &.C.,"  whereupon  a  quarrel  and  fight  took 
place.  Simon  Lee  fully  confirmed  this  witness.  He  said 
that  Charles  Lee  was  aware  that  he  (witness)  had  bargained 
with  the  plaintiff  for  the  land  ;  that  in  November,  1S54,  the 
survey  was  made,  and  the  line  run  by  Tnnstall.  After  the 
line  was  run,  he  and  Charles  went  to  the  plaintiff.  Charles 
said  he  was  to  make  title  for  half,  and  that  he  would  pay  the 
plaintilf  for  his  half.  The  terms  were  agreed  upon,  but  still 
witness  got  no  deed.  About  twelve  months  afterwards,  wit- 
ness "went  to  Charles,  and  told  him  he  wanted  a  deed,  who 
replied,  that  he  was  to  have  no  more  to  do  with  it;  for  he  had 
not  paid  for  it,  and  she  (plaintiff)  could  keep  the  land  and  sell 
it,  and  go  through  with  it."  Samuel  Tnnstall  corroborates 
this,  when  he  says  that,  in  1854,  he  ran  a  dividing  line  on 
this  land.  There  were  present  with  him  on  that  evening, 
Charles  W.  Lee  (defendant),  David  Lee  and  Simon  Lee; 
Charles  and  Simon  took  part  in  the  survey.  Witness's  object 
in  that  survey,  by  the  direction  of  Charles  and  Simon  Lee, 
was  to  divide  the  land  in  half;  Charles  told  him  one  of  the 
pieces  was  to  be  for  Simon  Lee,  and  that  Simon  was  to  pay 
for  the  survey.     Witness  made  a  plat  of  Ijalf  for  Simon  Lee. 


38 


578  APPENDIX. 


Lee  vs.  Lee. 


When  he  wrote  the  deed,  he  thought  the  land  worth  $300. 
Within  the  last  two  or  three  years,  thinks  it  worth  $2  50  or 
$3  per  acre. 

In  April,  1856,  one  Jesse  M.  Hill  obtained  a  judgment 
against  the  defendant,  Charles  W.  Lee,  for  $85  and  costs. 
The  land  adjoined  that  of  the  defendant  Wyatt  J.  Nettles, 
In  July,  1856,  the  execution  of  Hill  was  levied  on  the  land 
as  the  property  of  the  defendant,  Charles  W.  Lee.  At  the 
sale  in  October,  1856,  full  notice  was  given  of  plaintiff's  title. 
It  was  bid  off  by  defendant,  Wyatt  Nettles,  as  Sheriff  Frier- 
son  testifies.  But  Wyatt  J.  Nettles,  in  his  answer,  says  that 
it  was  not  bid  off  by  him,  but  by  his  son  and  co-defendant, 
S.  J.  Nettles,  who  is  a  minor,  but  who  acted  by  his  advice — 
that  the  land  was  bid  off  for  $15,  and  that  he  furnished 
his  son  with  the  money  to  comply  with  the  terms  of  the 
sale;  that  notice  was  given  of  plaintiff's  claim,  and  he  has 
no  doubt  that  this  was  the  cause  of  the  price  at  which 
it  was  bid  off.  On  25th  March,  1857,  this  bill  was  filed. 
The  answer  of  defendant,  Charles  W.  Lee,  insists  that  the 
transaction  was  an  absolute  sale,  and  that  he  paid  to  the 
plaintiff  the  consideration  money  of  $100.  The  answer  is 
directly  disproved,  not  only  by  the  witnesses,  Stephen  C.  Lee 
and  Samuel  Tunstall,  testifying  as  to  the  circumstances  of  the 
preparation  and  execution  of  the  deed,  but  by  the  uniform 
declarations  of  the  defendant,  from  the  time  of  receiving  the 
deed  until  August,  1855.  It  is  contradicted  by  the  situation 
of  the  parties.  He  never  was  able  to  pay  $100,  and  the 
plaintiff  was  never  known  to  have  $5  in  her  life.  The  whole 
current  of  the  testimony  satisfies  the  Court  that  the  answer  of 
the  defendant  is  a  bold  attempt  to  sustain  a  palpable  fraud 
by  corrupt  perjury.  It  is  painful  to  arrive  at  this  conclusion, 
particularly,  where  the  perpetrator  and  the  victim  are  brother 
and  sister.  It  would  be  great  injustice  to  the  defendant,  to 
suppose  that  he  originally  intended  any  fraud.  He  honestly 
undertook  to  protect  the  rights  of  his  illiterate,  poor  and  de- 
fenceless sister,  against  the  aggressions  of  a  trespasser.     He 


APPENDIX.  579 


Columbia,  November  and  December.  ISSfri. 


was  in  no  condition  to  traffic  with  her  for  the  property  which 
he  had  engaged  to  defend.  Nor  did  he  attempt  any  snch 
malpractice.  When  he  went  to  take  advice  of  connsel  as  to 
the  mode  of  vindicating  his  sister's  rights  against  the  annoy- 
ances of  John  A.  Lee,  he  probably  misapprehended  his  legal 
adviser.  A  power  of  attorney  (as  Tnnstall  told  him)  would 
have  answered  the  purpose  qnite  as  well  as  a  "face  claim  " 
(as  he  called  it  to  one  witness)  or  a  '' colorable  claim "  or 
"color  of  a  claim  ''  (as  he  said  to  the  other  witness).  But  still 
he  acted  in  good  faith.  He  always  professed  his  readiness  to 
reconvey  to  his  principal.  As  late  as  November,  1854,  he 
not  only  bargained  with  her  for  one-half  the  premises,  but 
was  actively  engaged  in  assisting  the  surveyor  to  run  the 
dividing  line  between  the  moiety,  which  he  had  agreed  to 
purchase,  and  the  moiety  bargained  by  the  plaintiff  to  Simon 
Lee,  and  who  was  then  in  possession,  having  been  placed 
there  by  her  several  months  previously.  Down  to  June,  1855, 
he  was  always  ready  to  reconvey.  It  was  not  until  after  his 
marriage  with  the  daughter  of  his  co-defendant  in  July,  1855, 
that  he  intimated  any  intention  to  claim  the  land.  In  Sep- 
tember, 1855,  he  raised  a  conversation  about  tlie  land  with 
the  witness,  Alexander  Kerby  ;  told  him  how  he  came  to  get 
the  deed  from  the  jjlaintitf,  and  that  he  was  to  make  her  a 
deed  back  for  the  land,  but  said  that  "since  she  had  done 
him  as  she  had,  that  he  would  not  make  the  deed  back  to 
her;  he  should  not  do  it,  for  she  had  no  note  against  him." 
And  to  David  Lee  he  said  in  August,  1855,  that  "  he  knew 
that  he  had  not  paid  a  dollar  for  the  land,  but  that  he  had  a 
deed,  and  could  hold  it,  and  intended  to  do  it.''  And  soon 
afterwards,  to  the  witness,  Joseph  Pate,  he  said  that  "  he  had 
never  paid  the  plaintiff  anything  for  the  land,  and  he  would 
be  damned  if  he  ever  would,  as  she  had  done  as  she  had  done 
and  he  could  hold  the  land  independent  of  her."  In  July 
afterwards,  the  land  was  levied  on  as  the  only  visible  proyicrty 
of  defendant,  under  Hill's  fi.  /a.—  sold  as  before  stated,  for 


580  APPENDIX. 


Lee  vs.  Liee. 


$15,  and  ;iw//r/  bona  returned  for  the  balance  of  the  execu- 
tion. 

At  the  close  of  the  defendant's  answer,  he  desires  that  "  if 
necessary  to  his  defence,  he  may  have  the  benefit  of  the  stat- 
ute of  hmitations."  If  there  had  been  any  truth  in  his 
answer,  this  hypothetical  plea  would  have  been  wholly  unne- 
cessary. His  answer  covers  the  entire  matter  in  controversy. 
Mr.  Justice  Story,  as  well  as  other  writers  on  [)leadings,  states, 
that  pleas  of  this  character  are  pleas  only  why  the  defendant 
should  not  answer;  and  therefore,  if  he  does  answer  to  any- 
thing, to  which  he  may  plead,  he  overrules  his  plea,  for  the 
plea  is  only  why  he  should  not  answer;  and  if  he  answers 
he  waves  the  objection,  and  of  course  his  plea  ;  Story  PI.,  § 
6SS  and  note.  But  this  is  not  a  case  for  the  statute  of  limita- 
tions. The  defendant,  as  the  agent  of  the  plaintiff,  had 
obtained  the  deed  for  the  purpose  of  enabling  him  to  conduct 
his  agency,  and  prosecute  her  rights.  The  Court  is  not 
informed  at  what  time  the  possession  of  the  deed  ceased  to 
be  necessary  for  that  purpose.  But  the  defendant  constantly 
and  uniformly  admitted  the  subsistence  of  the  fiduciary  rela- 
tion until  the  summer  or  fall  of  1855,  some  eighteen  months 
before  the  institution  of  these  proceedings.  After  the  sale  by 
the  sheriff  in  October,  1856,  the  balance  due  on  the  execu- 
tion against  Charles  W.  Lee  was  paid  to  the  sheriff  by  the 
defendant  Wyatt  J.  Nettles,  and  the  execution  for  that 
amount  was  left  open  against  Lee  for  the  benefit  of  W.  J. 
Nettles.  The  character  of  the  answer  of  the  defendant  Wyatt 
J.  Nettles;  the  circumstances  attending  the  sale,  when,  after 
the  notice  of  the  plaintiff's  title,  Charles  W.  Lee  declared  that 
he  had  a  good  deed  for  the  land,  which  was  then  knocked  off 
to  defendant's  son,  a  minor,  and  incompetent  to  contract,  but 
who  acted  under  his  father's  advice;  and  land  worth  from 
four  to  five  hundred  dollars  bid  on  for  fifteen  dollars;  all 
these  satisfy  the  Court  that  the  defendant  Wyatt  J.  Nettles 
co-operated  with  his  son-in-law  and  co-defendant  Charles  W. 
Lee,  to  deprive  the  plaintiff  wrongfully  of  her  property,  and 


APPENDIX.  581 


Columbia,  November  and  December,  1858. 


thai  if  objeclioii    had   been  made,  he  ought  not  to  have  been 
examined  as  a  witness  in  the  case. 

It  is  ordered  and  decreed,  that  the  defendant,  Charles  W. 
Lee,  execute  to  the  plaintilF,  by  a  deed  prepared  under  the 
direction  of  the  commissioner,  a  reconveyance  of  the  prem- 
ises described  in  the  deed  of  17th  December,  1S49,  with  the 
exception  of  the  twenty  acres  heretofore  conveyed  by  the 
said  Charles  W.  Lee  to  John  A.  Lee.  It  is  further  ordered 
and  decreed,  that  the  defendant  S.  J.  Nettles,  and  all  claiming 
under  him,  be  perpetually  enjoined  from  in  anywise  usjnsi;  or 
setting  up  any  title  to  the  premises  against  the  plaintiff,  under 
the  purchase  at  sheriff's  sale  in  October,  1S56. 

It  is  finally  ordered  and  decreed,  that  tlie  defendants  Charles. 
W.  Lee  and  Wyatt  J.  Netties,  pay  the  costs  of  these  proceed- 
ings. 

The  defendants  appealed,  and  moved  this  Court  to  reverse 
the  decree  on  the  ground: 

Because  his  Honor,  having  decided  that  there  was  no  fraud 
on  the  part  of  Charles  W,  Lee  in  procuring  the  deed  from  the 
plaintitrs,  should  have  dismissed  the  bill — the  parol  trust 
which  the  bill  enforces  being  void  under  the  statute  of  frauds. 

And  failing  the  above  motion,  then  the  defendant  Wyatt 
J.  Nettles  moved  that  the  decree  be  modified  and  the  bill 
dismissed  as  to  him,  on  the  ground: 

That  the  evidence  upon  which  his  Honor  held  tliat  he  had 
co-operated  with  Charles  W.  Lee  wrongfully  to  deprive  the 
plaintiff  of  her  land,  by  refusing  to  carry  out  the  parol  trust, 
was,  it  is  respectfully  submitted,  insufficient  to  sustain  his 
Honor's  conclusion  ;  and  this  defendant  having  fully  and 
fairly  answered  the  bill,  as  he  was  called  upon  by  the  plain- 
tiff to  do,  and  having  also  disclaimed  all  interest,  and  no  c(ir- 
rupt,  illegal  or  improper  conduct  being  proved  against  him, 
the  bill  as  to  him  should  have  been  dismissed  with  costs. 

Spain,  Richardson,  for  appellants. 

Moses,  contra. 


582  APPENDIX. 


Lee 


The  opinion  of  the  Court  was  delivered  by 
DuNKiN,  Ch.  If  the  oral  testimony  was  at  all  admissible, 
the  Court  is  satisfied  with  the  decree.  The  only  plansible 
objection  would  be  that,  as  the  conveyance  was  absolute  in 
terms,  parol  evidence  was  inadmissible  to  contradict,  vary,  or 
add  to  its  contents.  But  it  appears  well  settled,  on  authority, 
that  when  a  foundation  is  laid  by  an  allegation  of  fraud, 
such  evidence  may  be  received.  In  Russell  vs.  Southard,  12 
How.,  139,  the  precise  question  was  presented.  "  We  have 
no  doubt  (say  the  Court)  that  extraneous  evidence  is  admis- 
sible to  inform  the  Court  of  every  material  fact  known  to  the 
parties  when  the  deed  and  memorandum  were  executed. 
This  is  clear  both  npon  principle  and  authority.  To  insist 
on  what  was  really  a  mortgage,  as  a  sale,  is  in  equity,  a  fraud, 
which  cannot  be  successfully  practised,  under  the  shelter  of 
any  written  papers,  however  precise  and  complete  they  may 
appear  to  be."  And  they  cite  the  language  of  the  same 
Court  in  Moms  vs.  Nixon,  I  Howard,  126:  "The  charge 
against  Nixon  is  substantially  a  fraudulent  attempt  to  con- 
vert that  into  an  absolute  sale,  which  was  originally  meant 
to  be  a  security  for  a  loan.  It  is-in  this  view  of  the  case  that 
the  evidence  is  admitted  to  ascertain  the  truth  of  the  trans- 
action, though  the  deed  be  absolute  on  its  face."  Many 
other  authorities  are  cited;  and  the  Court  conclude  by  saying 
that  "'  the  oral  evidence  is  admissible  upon  the  principles  of 
general  equity  jurisprudence."  In  our  own  Courts  the  same 
question  was  presented  in  Jirnold  vs.  Mattison,  3  Rich.  Eq., 
153.  Tlie  presiding  Chancellor  received  the  evidence,  but 
declined  to  grant  relief.  If  an  instrument,  (says  he,)  absolute 
on  its  face,  can  be  converted  by  jiarol,  into  a  defeasible 
instrument,  except  where  the  omission  to  reduce  the  defeas- 
ance to  writing  was  occasioned  by  fraud  or  mistake,  the 
evidence  must  be  very  clear  and  convincing.  In  that  case 
the  Chancellor  held,  upon  the  evidence,  that  the  deed  was 
-intended  by  the  parties  to  be  absolute  as  its  terms  purported, 
and  that  if  any  fraud  existed,  it  was  in  reference  to  third 


APPENDIX.  58:J 


Columbia,  Novemher  and  December,  1S58. 


persons.  But  if  there  be  frauJ,  whether  it  consist  in  not 
executing  a  defeasance,  or  in  misrepresenting  the  character 
of  the  instrument,  or  in  any  other  way,  it  would  be  a 
reproach  to  the  administration  of  justice  if  the  perpetrator 
of  the  fraud  could  shield  himself  from  detection  and  expos- 
ure by  the  abuse  of  rules  instituted  to  prevent  fraud.  A 
bond,  deposited  as  an  indemnity,  might  be  enforced  as  an 
absolute  debt;  or,  as  in  this  case,  a  deed  taken  from  an  indi- 
gent, helpless  and  ignorant  woman,  for  the  avowed  purpose 
of  vindicating  her  rights  to  her  freehold,  might  be  perverted 
into  an  instrument  of  despoiling  her  of  those  rights.  In  the 
language  of  the  Supreme  Court,  "the  oral  evidence  is  admis- 
sible in  such  cases  upon  the  principles  of  general  equity 
jurisprudence,"  and  to  prevent  the  successful  practice  of  such 
frauds  under  tlie  shelter  of  any  written  papers,  however  pre- 
cise and  formal, 

^  The  defendant's  principal  ground  of  appeal  is  because  his 
agreement  to  reconvey  the  lands  was  a  parol  trust,  and  void 
under  the  statute  of  frauds.  But  Mcllvaine  vs.  Masser/,  2 
Hill  Ch,,  421,  (and  Kinard  vs.  Heirs,  .3  Rich,  Eq,,  423,)  estab- 
lish that  the  statute  cannot  be  used  as  an  instrument  of  fraud. 
It  is  ordered  and  decreed,  that  the  appeal  be  dismissed. 


Wardlaw,  Ch,,  concurred. 
t/lppeal  dismissed. 


INDEX. 


ACCOUNT. 
Vide  Errciitor.t  and  Admin istraiors,  1,  2,  3.     Joint  Tenants,  2. 

ACCOUNT  STATED. 
Vide  Evidence,  3,     Partnership,  3. 

ACT  OF  DISTRIBUTIONS. 

f.  The  Act  of  1S51,  12  Slat.,  SO,  amending  the  Act  of  1791,  must  be  read  as 
if  it  were  part  and  parcel  of  the  Act  of  1791,  and  incorporated  in  it. 
O'Neale  vs.  Dunlap 'lOO 

ADMINISTRATION. 

Vide  Advancements,  1.    2,    3,    A.      E3rec7itors   and   Adviinistrators.     Infant. 
Jurisdiction,  2.      Wills  and  Testaments,  2,  3,  10,  11. 

ADVANCEMENTS. 

1.  The  provision  in  the  Act  of  1791,  in  relation  to  advancements,  applies  as 

well  to  gifts  made  by  a  mother  as  to  fiifts  made  by  a  father. — Rees  vs. 
Rees &6 

2.  Where  a  parent,  having  a  son  and  a  grandson,  issue  of  a  deceased  child, 

makes  a  gifl  to  the  son,  it  will  be  treated  as  an  advancement  in  favor  of 
the  grandson -*"• 

3.  Where  a  parent  holds  a  bond   again«l  her  son,  and   destroys  the   bond. 

intending  to  discharge  the  debt,  it  will  be  an  advancement  to  the  amount 

of  the  bond Jf>- 

4.  Whether  property,  given  by  a  parent  to  her  son,  shall  be  considered  an 

advancement,  is  not  a  question  of  intention — no  matter  what  the  parent 
intended,  if  she  leaves  no  will,  it  will  be  considered  an  advancement,  if 
otherwise  proper  to  be  so  considered •'*• 


;jSo  index. 

.0.  A  father  beins  the  srnnrdian  of  his  children,  and  having  a  sum  of  money 
of  theirs  in  his  liands.  invested  it  in  lahd,  and  the  amount  not  being  suf- 
ficient, paid  a  bain  nee  fr mi  liis  own  funds.  The  title  he  took  to  himself, 
styling  himself  guardian  :  Held,  under  the  circumstances,  that  the  bal- 
ance paid  was  an  advancement,  and  that  the  whole  of  the  land  belonged 
to  the  wards. —  O' Neale  vs.  Dnnlap 405 

ANSWER. 
Vide  Evidence,  1,  2. 

APPEAL  FROM  ORDINARY. 
1.  Where  proceedings  are  instituted  before  the  ordinary,  against  an  exec- 
utor, for  account,  and  a  dispute  arises  between  a  legatee  and  his  as- 
signees of  the  legacy,  as  to  the  validity  of  the  assignment,  an  appeal 
from  the  ordinary's  decision  holding  the  assignment  to  be  invalid,  lies, 
under  the  Act  of  1839,  to  the  Court  of  Equity.     Estate  of  Piiison 110 

ASSENT. 
Vide  Execiftors  and  Administrators,  5. 

COMMON  FUND. 
Vide  Trust  and  Trustees,  3. 

CONSIDERATION. 
Vide  J2idgment,  1. 

COPARTNERSHIP. 
Vide  Partnership. 

CORPORATIONS. 
Vide  Wills  and  Testaments,  9. 

COSTS. 

1.  Solicitors  and  Commissioners  in  Equity  are  not  entitled  to  charge  the  fees, 

allowed  by  the  Act  of  1827,  for  '•  attending  on"  and  "  holding  reference," 
for  attending  before  the  commissioners  to  take,  and  for  taking,  under 
the  Act  of  lb30,  the  testimony  of  witnesses  to  be  used  at  the  trial  of  the 
cause.     Gnignard  vs.  Ilarley 1 

2.  Solicitors  are  entitled  to  the  fee,  allowed  by  the  Act  of  1S27  "for  attend 

ing  on  reference,"  for  attending  before  the  commissioner  at  the  taxation 
of  costs,  only  where  the  taxation  has  been  referred  to  the  commissioner 
by  an  order  of  Court lb- 

3.  The  fees  paid  by  a  solicitor  for  obtaining  a  copy  of  the  appeal  decree,  will 

be  allowed  him  only  where  such  copy  is  necessary lb, 

4.  The  solicitor  of  each  parly  is  entitled  to  charge  for  his  argument  on  cir- 

cuit, and  on  the  appeal lb. 


INDEX.  5J57 

5.  For  swearing'  witnesses  examined  before  tlie  commissioner,  under  the 
Act  ot'  1830^  lie  is  entitled  to  charge  ;  but  the  charge  to  which  he  is  enti- 
tled, is  not  $1  for  each  witness,  but  $1  for  all  sworn  in  the  case lb. 

G.  Where  the  t'omniissioner  appoints  a  day  for  taking  the  examination  of 
witnesses,  inidcr  the  Ad  ol'  \.>>'M),  and  "causes  the  adverse  parly  to  be 
notified,"  tor  >ncli  notice,  actually  given,  he  is  entitled  to  charge  as  for  a 
.summons lb. 

7.  For  reporting  the  testimony  taken  under  the  Act  of  16.30.  the  coiumis- 
sioner  is  not  entitled  to  the  charge  of  $3  allowed  by  the  Act  of  1S27,  for 
'•  making  up  and  returning  report," Ih. 

S.  Where  an  appeal  is  taken,  the  commissioner  may  charge  for  a  copy  of  the 

decree  furnished  the  solicitor  of  the  appellee Ih. 

CREDITOR'S  BILL. 

1.  A  cre<litor,  who  has  failed  to  present  his  demand  within  the  time  limited 

])y  an  order,  under  a  creditor's  bill,  calling  in  creditors  to  present  their 
demands,  may,  upon  contributing  his  (air  i)roporlion  of  the  expenses  of 
the  bill,  be  permitted  to  present  and  prove  his  claim  at  any  lime  before 
actual  disiriiuiiion  of  the  assets.     Ex  parte  ]Vai/ler  and  Smitli 2.')9 

2.  But  such  creditor  will  not,  it  seems,  be  saved  from  the  eflect  of  his  neglect, 

if  any  defence,  arising  from  the  lapse  of  time  prior  to  the  filing  of  his 
petition  for  leave  to  present  and  prove  his  demand,  can  be  m.idc Ih. 

DELIVERY. 
Vide  Mortgage,  2. 

DFRESS. 
1.  A  deed  is  not  necessarily  void  because  the  party  was,  at  the  lime,  under 

restraint — the  restraint  must  be  illegal.     Kstalv  of  Piiisoii 110 

ELECTION. 
1.  The  wards  having  elected  to  take  the  land,  not  the  mnney  :    Uth/,  llmt  :t 
must  be  considered  as  real  estate,  and  so  treated   in  the  distribution  of 
the  estates  of  the  wards,  soiDe  of  whom  were  dead.      O'Neale  vs.  Dun- 
lap  lO.'J 

Vide  Atlvtnirpjiieiils,  .'). 

EMANCIPATION. 
Vide  S/ave.<t. 

EVIDENCE. 
I.  Bill  by  the  next  of  kin  of  donor  to  !>el  aside  a  liill  of  sale  of  a  >Iave, 
exp^es^ed  lo  have  l»een  made  in  consideration  of  $1. ()((()  paid,  on  the 
ground  that  the  sale  was  made  in  contravention  of  the  Act  of  ISH 
against  emancipation,  and  alleging  thi.t  the  money  paid  was  the  donor's 
own  money,  being  the  earnings  of  the  slave,  and  that  there  was  a  secret 


588  INDEX. 

trust  that  the  slave  should  be  emancipated:  //eW,  that  the  answer  of 
defendant  denying  the  trust,  and  averring  that  the  money  paid  was  his 
own  money  and  not  the  earnings  of  the  slave,  was  responsive  and  self- 
proving;  and,  the  evidence  being  insufficient  to  overthrow  the  answer, 
the  validity  of  the  bill  of  sale  was  sustained.     Belcher  vs.  McKelvey 9 

2.  Defendant  contended   that   an   agreement  had  been   repudiated,  and  to 

prove  it  offered  his  own  answer  in  another  cause  between  the  same 
parties:  Held,  that  if  defendant  could  make  proof  in  this  collateral  way, 
still  the  answer  did  not  prove  the  fact,  as  the  matter  was  not  distinctly 
alleged.     Martin  vs.  Campbell 205 

3.  Bill  by  a  ce-stny  qve  trust  against  trustee,  for  account,  dismissed,  certain 

dealings  between  the  parties  being  held  sufficient  evidence  of  a  final 

settlement  between  them.     Maffitt  vs.  Read 2S5 

Vide  Fraud.     Sheriff's  Sale,  1. 

EXECUTORS  AND  ADMINISTRATORS. 

1.  Where  the  personal  representative  is  entitled  to  an  account  of  rents  and 

profits  accruing  before  the  death  of  his  intestate,  he  has  such  an  inter- 
est as  entitles  him  to  file  a  bill  to  set  aside,  on  the  ground  of  fraud,  a 
conveyance  of  the  land  made  by  the  intestate.  Kir/Lpatrick  vs.  Atkin- 
son      27 

2.  H  was  the  agent  of  B,  an  administrator,  to  receive  the  rents  of  a  certain 

lot.  After  some  years,  a  son  of  H  claimed  the  lot  as  his  own,  and 
received  the  rents  for  many  years,  but  permitted  his  father  to  use  them: 
Held,  thai  the  son  was  liable  to  account  to  B  for  the  rents  received  by 
him.     Jewell  vs.  Jewell 296 

3.  Where  an  administrator  receives,  himself  or  by  agent,  the  rents  of  real 

estate  of  the  intestate,  though  his  sureties  may  not  be,  he  is  liable  to 
account  to  the  heirs  for  the  rents  thus  received Ih. 

4.  Where  the  testator  gives  an  estate  for  life  in  a  slave,  and  directs  that, 

after  the  death  of  the  tenant  for  life,  the  slave  be  sold  and  equal  distri- 
bution of  the  proceeds  made  among  certain  persons,  an  assent  by  the 
executor  to  the  legacy  to  the  tenant  for  life  does  not  divest  him  of  the 
remainder — the  estate  in  remainder,  with  power  to  sell  and  distribute, 
remains  in  the  executor.     Fretwell  vs.  Neal 559 

5.  Where  the  testator  gave  his  plantation  and  two  slaves  to  his  wife  for  life, 

and  the  wife  and  children  remained  upon  the  plantation  for  several 
years,  but  it  was  under  the  control  and  management  of  the  executor, 
who  disposed  of  the  crops  and  paid  the  debts  with  the  proceeds  :  Held, 
that  there  was  not  sufficient  evidence  of  an  assent  to  the  legacy  to  the 
wife lb. 

6.  A  judgment  in  Georgia  against  an  executor  as  executor,  to  be  levied  of 

the  goods  and  chattels  of  the  testator,  founded  on  a  debt  contracted  by 
the  executor  after  the  death  of  the  testator,  though  irregular  according 
to   the  course  of  procedure  in  this  State,  will,  under  the  Constitution 


INDEX.  589 

and  Act  of  Congress,  be  respected  by  the  Courts  of  this  State,  as  a  valid 
judgment;   and  a  sale  under  it  of  the  goods  of  tl,e  testator  will   be   up- 

h'^''^ lb. 

Vide  Infant.     Parties,  A.      IVi/ls  and  Testaments,  2,  3,  S,  9. 

FEES. 
Vide  Costs. 

FRAUD. 

1.  Where  there  are  strong  circumstances  of  suspicion  against  a  judgment 

confessed  by  a  son  to  his  father,  the  father,  on  bill  liied  by  creditors 
impeaching  the  judgment  for  want  of  consideration,  should  show  the 
consideration  by  other  evidence  than  his  own  oath.  McCorJLle  vs.  ^fo7lt- 
gomenj HI 

2.  Where  a  judgment  is  set  aside  for  fraud  and  want  of  consideration,  and  a 

reference  is  ordered  for  creditors  to  come  in  and  prove  their  demands, 
evidence  taken  before  the  conimisisioner  on  the  reference  will  not  be 
considered  by  the  Court  of  Appeals  on  the  appeal  from  the  decree Ih. 

Vide  Frauds,  Statute  of.     Mortgage,  3. 

FRAUDS,  STATUTE  OF. 

1.  B,  for  the  purpose  of  prosecuting  certain  trespassers  in  his  own  name, 
received  from  A  an  absolute  conveyance  of  a  tract  of  land,  under  a  ver- 
bal promise  to  reconvey  the  land  as  soon  as  the  purpose  for  which  the 
deed  was  taken  should  be  answered,  and  afterwards  fraudulently  re- 
fused to  execute  a  reconveyance  :  Held,  that  B  was  not  protected  liy  the 
statute  of  frauds,  and  he  was  ordered  to  execute  a  reconveyance, 
according  to  the  terms  of  his  verbal  promise.     Lee  vs.  Lee T^~{ 

GUARDIAN  AND  WARD. 
Vide  Advancetnents,  5. 

HUSBAND  AND  WIFE. 

1.  Where  a  husband  sues  his  wife,  and  the  bill  is  taken  pro  confesno  against 
her,  the  Court  is  not  bound  by  her  admission,  but  may  treat  the  case 
very  much  as  if  she  were  an  infant,  and  hold  the  husband  barred  by  his 
laches  in  applying  for  relief     Kirlwcy  vs.  Keitli 33 

Vide  Separate  Estate. 

INFANT. 

1.  A  bill  for  distribution  of  the  estate  of  an  infant  who  died  when  eleven 
years  old,  and  who  has  been  dead  near  twenty  years,  may  proceed  with- 
out making  an  administrator  of  the  infant  a  parly.  Marklcy  vs.  Single- 
tary 393 


590  INDEX. 

INJUNCTION. 

1.  An   absent   defendant,  having  an    interest   under   an  assignment  for  the 

benefit  of  creditors,  may  be  restrained  by  injunction  from  enforcing  his 
judgment  by  seizure  and  sale  of  the  assigned  estate — the  judgment  hav- 
ing been  recovered  against  the  assignor  after  the  execution  of  the 
assignment.     Hoicardvs.  Caiuion 23 

2.  A  party  who  obtains  judgment   in   the  United  States  Court,  may  be  re- 

strained by  the  Court  of  Equity  of  this  State,  from  enforcing  his  judgment 
by  levy  and  sale  of  property  not  liable  to  levy  and  sale  under  his  execu- 
tion     lb. 

Vide  Jurisdiction,  2.     Nuisance,  1. 

INTEREST. 
Vide  Partnership,  1. 

INTESTATES'  ESTATES. 
Vide  Act  of  Distrihntiojis.     Advancements,  1,  2,  3,  4. 

ISSUE   AT   LAW. 

1.  Where  an  issue  at  law  is  ordered,  the  verdict  of  the  jury,  though  approved 

of  by  the  presiding  Judge,  is  not  obligatory  on  the  Chancellor — he  may 
direct  a  new  trial,  or  even  decide  the  cause  in  opposition  to  the  verdict. 
Ktrkpatrick  vs.  Atkinson 27 

2.  Upon  an  appeal  from  a  Circuit  Chancellor's  decree,  refusing  to  order  a 

new  trial  at  law,  it  is  incumbent  on  the  appellant  to  show  that  the  Chan- 
cellor has  miscarried;  it  is  not  enough  for  the  Court  of  Appeals  to  have 
misgivings  as  to  the  result  attained  by  the  Chancellor lb. 

3.  Where  incompetent  evidence  was  received  on  the  trial  of  the  issue  at 

law,  the  Circuit  Chancellor  is  not  bound,  like  a  Law  Court  of  Appeals, 
to  grant  a  new  trial  on  that  ground;  he  may,  if  he  is  satisfied  with  the 
verdict  upon  consideration  of  the  competent  testimony,  refuse  to  grant 
a  new  trial Th. 

JOINT  TENANTS. 

1.  Where  two  persons  purchased  a  tract  of  land  as  joint  tenants,  and  gave 

their  joint  bond  for  the  purchase  money,  and  one  of  them  paid  heyond  his 
proportion:  Held,  that,  for  the  amount  paid  over  his  proportion,  he  was 
surety,  and  entitled  to  set  up  the  bond  as  a  speciality  debt  against  the 
estate  of  his  co-tenant.     Stokes  vs.  Ilodijes 13.'') 

2.  Where  one  joint  tenant  used  and   occupied   the   land   for  several  years 

alter  the  death  of  his  co-tenant,  and  on  bill  to  mar-'^hal  the  assets  of  the 
co-tenant,  was  allowed  his  demands  as  creditor:  Held,  that  he  must 
account  for  the  use  of  the  land.  and"deduct  from  his  demands  a  reason- 
able amount  for  the  use  of  such  proportion  as  he  occupied  over  his 
share lb. 


INDEX.  691 

JUDGMENT. 
Vide  Executors  and  A(l/>ti)iislrators,  G.     Fraud. 

JURISUICTION. 

1.  A  promissory   note,  drawn  payable   to  the  drawer   or  bearer,  is  void   at 

law  as  against  the  drawer,  but  in  equity  the  holder  may  be  tntilled  to 
recover.     Keith  vs.  Keith 83 

2.  Where  one  has  acquired  a  good  equitable  title  to  slaves  through  the  dis- 

tribulees — there  being  no  creditors — of  an  intestate,  the  former  owner  of 
the  slaves,  upon  whose  estate  no  administration  had  then  been  granted, 
equity  will  restrain  one  who  afterwards  takes  out  letters  of  administra- 
tion upon  the  estate  of  the  intestate,  from  prosecuting  an  action  of  trover 
for  the  conversion  of  the  slaves,  against  such  equitable  owner.  Miles 
vs.  Wise 5.3G 

Vide  hijuuction,  1,  2      Nuisance. 

LAPSE   OF  TIME. 
Vide  PreKiimptions.      Trusts  and  Trustees,  2. 

LEVY. 

Vide  Pres7imptio7is,  I. 
LIMITATION    OF   ESTATES. 

1.  A  conveyed  property  to  a  trustee  for  the  use  of  the  grantor  for  life,  and, 

after  his  death,  "in  case  he  died  unniarried  and  without  children,"  over. 
A,  having  married  and  had  a  child,  filed  this  bill  against  the  trustee  and 
remaindermen,  to  have  the  deed  cancelled,  contending  that  the  contin- 
gencies had  happened  which  defeated  the  limitation  over.  The  Court 
refused  to  interfere  before  the  death  of  A,  holding  that,  in  the  situation 
of  the  parties,  it  was  sufficient  that  a  reasonable  doubt,  as  to  the  con- 
struction of  the  deed,  should  be  entertained.      Toumrr  vs.  Rhodes 25() 

2.  By  marriage  settlement,  the  property  of  the  wife  was  settled  to  the  joint 

u.«e  of  husband  and  wife  during  coverture,  and  if  the  husband  survived, 
to  his  use  for  life,  with  remainder  to  "the  legal  heirs  and  representa- 
tives" of  the  wife.  The  husband  survived,  and,  upon  his  death  :  Held, 
that  the  persons  entitled  to  take  were  the  heirs  and  distributees  of  the 
wife,  including  the  husband,  at  her  death.     Glover  v».  Adams 20 J 

.3.  A  father  gave,  by  deed,  a  negro  girl,  to  his  daughter  C,  "for  her  support, 
during  ber  natural  life,  and  at  her,  the  8aid  C.'s  death,  the  snid  negro 
girl,  together  with  her  future  issue  und  inciease,  shall  l)e  the  property  of 
the  issue  of  the  said  C.:"  Held^  that  C.  took  an  estate  for  lile.  with  a 
viilid  liihiialion  to  her  issue  as  purchasers.     Marklry  vs.  Sii/g/efmy '.V.^J 

4.  The  testator  devised  real  and  personal  estate  to  his  executors  in  trust, 
for  the  sole  and  separate  use  of  his  daughter  N..  "for  Rnd  during  the 
term  of  her  natural  life,  and  at  her  death  to  be  equally  divided  amongst 
her  children  in  fee  simple.''     N.  had  eight  children  living  at  the  death  cif 


592  INDEX. 

the  testator,  one  oT  whom  died  in  the  lifetime  of  N.,  leaving  a  husband, 
but  no  issue,  surviving  her:  Held,  ihal  the  eight  children  took  vested 
interests,  and  that  the  representative  of  the  one  who  died  in  the  lifetime 
of  N.  was  entitled  to  her  share.     Wihon  vs.  McJuiikin 527 

Vide  Wills  and  Testaments,  1. 

LIMITATIONS,   STATUTE   OF. 

1.  From  analogy  to  the  statute  of  limitations,  the  Court  of  Equity  generally 

adopts  the  period  of  the  statute  as  a  bar  to  equitable  demands.  Some- 
times a  shorter  period  is  held  to  preclude  the  plaintiff,  and  where  the 
circumstances  of  the  case  make  it  inequitable  for  the  delendant  to 
insist  on  the  bar  of  the  statute,  the  Court  will  not  enforce  it.  Kirlpat- 
riclc  vs.  Atkinson 27 

2.  In  June,  1847,  J.  M.  executed  two  deeds,  by  which  he  conveyed  his  land 

and  negroes  to  V.  A.,  reserving  the  use  to  himself  for  life.  He  re- 
mained in  possession  until  1S52,  when  he  died  intestate.  In  May,  1856, 
the  plainlifl"  administered  on  his  estate,  and  shortly  afterwards  filed  a 
bill,  to  set  aside  the  deeds,  on  the  ground  of  misrepresentation  and 
fraud,  and  of  the  incapacity  of  the  donor.  The  allegations  having  been 
found  true,  and  it  not  appearing  that  the  capacity  of  the  donor  had  im- 
proved, the  statute  of  limitations  was  held  not  to  bar  the  plaintiil's  bill.    Ih. 

3.  Where   a  party  files  a  bill   to  set  aside  his  own  deed,  on  the  ground  of 

duress,  and  more  than  four  years  have  elapsed  since  the  deed  was  exe- 
cuted, if  he  wishes  to  avoid  the  effect  of  his  laches  by  showing  that  the 
duress  continued  after  the  deed  was  executed,  he  must  make  the  ques- 
tion in  his  pleadings  and  by  evidence  at  the  trial.     Kirksey  vs.  Keith...     33 

4.  Upon  demands  purely  legal,  the  Court  of  Equity  follows  the  decisions  at 

law  in  applying  the  bar  of  the  statute  of  limitations  ;  but  where  the  pecu- 
liar remedies  of  the  Court  are  sought,  a  shorter  time  than  the  legal  bar 
may  be  sutlk-ient  to  prevent  the  Court  from  giving  relief lb. 

LUNACY. 

1.  Inquisitions  of  lunacy  are  usually  executed  at  the  residence  of  the  sup- 

posed lunatic,  or  in  the  vicinage  ;  but  that  is  a  matter  within  the  discre- 
tion of  the  Judge  or  Chancellor  ordering  the  commission  ;  he  may  order 
it  to  be  executed  in  another  district.     Ex  parte  Wilson 445 

2.  The  traverse  of  an    inquisition  of  lunacy  should,  as   a  general   rule,  be 

tried  in  the  district  where  the  commission  was  executed;  but  that,  also, 
seems  to  be  a  matter  of  discretion  with  the  Judge  or  Chancellor  order- 
ing the  traverse lb. 

MORTGAGE. 

1.  Where  a  mortgage  has  been  duly  registered,  a  subsequent  purchaser  of 
the  land  will  not  be  protected  by  presumptions  of  payment  arising  from 
the  lapse  of  time,  where  the  mortgagor  himself  is  not  so  protected — he 
having  made  payments  which  rebut  the  jiresumption.  Bryee  vs.  Bowers 
and  Stork 41 


INDEX.  593 

2.  An   nnrecortled   mortsragre  produced  liy  one  of  the  mortgngees,  after  the 

death  of  the  mortfragor  :  Ihlii,  under  the  fircnmstances,  to  be  invalid  for 
want  of  snflicieiil  proof  of  delivery.     Stokes  vs.  Ilod<je.i j  35 

3.  A  purchaser  in  Florida  of  a  inortgag-ed  slave,  removed  the  slave  to  this 

State,  and  here  sold  him  to  one  who  carried  him  beyond  the  jurisdiction  : 
Held,  that  the  purchaser,  who  liought  with  notice  of  the  mortgage,  was 
liable  in  equity  to  the  mortgagee  :  and  that  the  mortgagor  was  a  neces- 
sary party  to  the  bill.     Atukisou  vs.  Aii-eu 232 

Vide  Parties,  1,  2,  3. 

MOTHER. 
Vide  Advaiicemrnts,  1. 

NEW  TRIAL. 
Vide  Issue  at  Law. 

NUISANCE. 

1.  Bill  for  special  injunction  to  compel  the  City  Council  of  Charleston  to  re- 

establish a  public  landing,  which  they  had  obstructed,  or  substitute 
another,  equally  a?  good,  in  its  place,  dismissed  for  want  of  clear  and 
satisfactory  evidence  that  the  right  existed.  State  vs.  City  Couiicil  of 
Charlestov 4.32 

2.  Courts  of  Equity  >vill  not,  it  seems,  grant  an  injunction  to  restrain  a  pub- 

lic nuisance,  unless  the  right  be  established  by  clear  and  determinate 
evidence lb. 

ORDINARY. 
Vide  Appeal  from  Ordinary. 

PARENT   AND   CHILD. 
Vide  Adoiincements.      Fraud.      Wills  and  Testaments,  Jl. 

PARTIES. 

1.  B  mortgaged  land  to  A,  to  secure  the  payment  of  a  bond,  and  afterward* 

conveyed  the  land  to  C,  who  conveyed  to  D.  B,  then,  assigned  his 
estate  for  the  benefit  of  his  creditors,  and  died  insolvent.  On  bill  filed 
by  A.  again!>l  C  and  D,  for  foreclosure,  no  demurrer  was  filed,  for  lack  of 
proper  parties  :  Held,  thai  defendants  conid  not  insist,  at  the  hearing, 
that  the  personal  representative  of  13  should  be  made  a  party  to  the  bill. 
Brycf.  vs.  Bowers  and  Stork 41 

2.  That  the  assignee  of  B  was  not  a  necessary  party  to  the  bill /A, 

3.  Qiirtre,  whether  to  a  bill  against  the  party  in  possession  of  the  mortgaged 

land,  for  foreclosure  of  the  tnor'gage,  the  personal  representaliTe  of 
the  deceased  mortgagor  is,  in  any  case,  a  necessary  party /♦ 

39 


594  INDEX. 

4.  To  a  bill,  against  an  administrator,  for  account  of  the  estate  of  the  intes- 
tate, received  by  a  deceased  agent  and  attorney  of  the  administrator  and 
heirs,  for  whose  professional  services  a  huge  amount  was  claimed: 
Held,  that  a  representative  of  the  attorney  was  a  necessary  party  to  the 
bill.     Jewell  vs.  Jewell 296 

Vide  Infant. 

PARTNERSHIP. 

1.  One  partner,  who  puts  in  his  proportion  of  the  capital,  is  not   entitled  to 

charge  interest  because  the  other  partner  has  failed  to  put  in  his  pro- 
portion ;  the  articles  of  partnership  not  stii)ulating  for  the  payment  of 
interest.     Stokes  vs.  Hodges 1 35 

2.  Where  two  physicians  agree  to  practice  in  copartnership,  and  divide  the 

receipts  of  their  practice,  each  is  bound  to  devote  his  labor,  skill  and 
services,  as  a  physician,  to  the  promotion  of  the  common  benelit ;  to 
keep  books,  and  make  entries  of  charges  and  receipts,  and  have  them 
always  ready  for  inspection  and  explanation;  and  if  one  should,  for  a 
considerable  time,  when  in  good  health  and  full  practice,  neglect  to  keep 
any  account  of  his  practice,  he  must,  nevertheless,  be  required  to  ac- 
count for  what  he  made,  upon  such  evidence  as  may  be  adduced. 
Schmidt  vs.  Ltbhi/ 329 

3.  Where,  after  the  dissolution  of  a  firm,  one  of  the  partners  took  the  books 

to  collect  the  accounts,  and  he  rendered  statements  showing  balances 
due  by  him  on  account  of  his  payments  and  collections  :  Held,  that  such 
statements  did  not  amount  to  an  account  stated,  so  as  to  preclude  him 
from  demanding  an  account  from  the  other  partner II). 

PAYMENT. 

1.  A  promissory  note,  not  expressly  taken  in  payment  of  a  bond:  Held,  not  to 

be  payment.     Bryce  vs.  Bowers  and  Stork 41 

Vide  Mortgage,  1.      Presilmftions,  1,  2. 

PLEADING. 
Vide  Infant.     Limitations,  Statute  of,  3.     Parties. 

POWER   TO   SELL. 
Vide  E.ceciitors  and  Administrators,  A.      Wills  and,  Testaments,  8. 

PRACTICE. 
1.  Bill  filed  to  subject  trust  property  to  demands  for  work  done  and  improve- 
ments put  on  it  by  the  tenant  for  life:  Held,  that  no  decree  should  have 
been  made,  subjecting  the  property  to  the  claim,  without  directing  an 
inquiry  into  the  nature  of  the  contract,  by  whom  made,  and  the  degree 
of  his  authority;  the  value  of  the  work  to  the  estate,  its  cost,  and  the 
different  Interests  held  in  the  estate  ;  also,  as  to  a  proper  scheme  of  pro- 
viding for  paying  the  demands.     Culleton  vs.  Oarrity 323 

Tide  Creditor's  Bill.     Frand.     Husband  and  Wife.     Infant.     Issue  at  Law. 
Limitation  vf  Estates,  1.     Lunacy.     Parties. 


INDEX.  595 

PRESUMPTIONS. 

1.  Levy,   under  execution,  on   a   house  and  lot,  with  oilier  circumstances: 

Held,  sufficient,  after  a  lapse  of  near  twenty  years,  to  raise  the  presump- 
tion that  the  judgment  \Vas  sali>licd.     Sessiom  vs.  Stcveiiso}! 2S'2 

2.  A  sovereign  Slate,  coming  in  as  a  creditor,  under  a  bill  lo  inarshal  assets, 

stands  as  other  creditors,  and  is  liable  to  the  ordinary  presumptions  of 
pnynienl //, 

'i.  Great  lapse  of  time  :  Hilil,  strongly  to  support  a  defence,  not  only  in  sup- 
plying lost  papers,  but  also  in  raising  the  presumption  that  no  wrong 
was  committed.     Fretiicll  vs.  Ncal rjSO 

Vide  Mortgnfffi,  1.      Trusts  and  Trustees,  1.  2. 

PRINCIPAL   AND    AGENT. 

L  S.  being  ihe  owner  of  certain  shares  in  the  stock  of  the  Stale  Rank,  which, 
by  the  usage  of  the  bank,  could  be  transferred  only  by  entry  in  the 
books  of  the  bank,  delivered  her  certificate  of  stock  to  her  attorney  B., 
with  a  blank  power  of  attorney,  authorizing  a  sale  of  the  stock.  B. 
borrowed  money  for  his  own  use  from  C,  and,  lo  secure  the  payment, 
transferred  to  him  the  certificate  and  power  of  attorney:  Iltld,  that  the 
transfer  to  C,  who  acted  bona  fide,  and  without  notice  ot  S.'s  title,  was 
valid.     Stale  Bank  vs.  Cox  ^  Co .344 

Vide  Parties,  4.      Trusts  and  Trustees,  1. 

PRINCIPAL   AND   SURETY. 
Vide  Joint  Tenants,  1. 

PROMISSORY   NOTE. 
Vide  Jurtsdirtion,  1.     Payment. 

REHEARING. 

1.  Circuit  decree  set  aside  by  ihe  Circuit  Court,  and  rehearing  ordered  on 

newly  discovered  oral  testimony.      Tomlinson  vs.  Totnlhtsoii ')2 

SATISFACTION. 
Vide  Pre.siimj)tioiis,  1. 

SEP.VRATE    ESTATE. 

1.  A  gift  lo  a  married  daughter,  "(or  her  support  during  her  natural  life," 
creates  a  separate  estate  in  the  daughter — Semhie.  .yar/,ln/  vs.  Shi- 
gl«l<try .391 

SETTLEMENT. 

Vide  l^vidfnc«.  .1. 


5'JG  INDEX. 

SHEIllFF-S  SALE. 

1.  A  Sheriff's  sale  of  a  negro,  made  in  Georgia,  in  1S30,  proved  by  parole, 
without  production  of  the  execution  or  the  return  of  sale  hy  the  Sheriff. 
Fretwell  vs.  Neal 5.51) 

SLAVES. 

1.  Where  a  gift  of  slaves  is  made  by  the  donor,  in  contravention   of  the  Act 

of  1811  against  emancipation,  the  gift  is  void  wl'ether  the  purpose  of  the 
donor  is  communicaled  to  ihe  donee  or  not.     Belcher  vs.  McKelvey 9 

2.  A  bequest  of  slaves  to  four  legatees,  "and  the  survivors  and  survivor  of 

them,"  "  with  a  request  that  they  will  extend  to  the  said  slaves  all  the 
indulgence,  privilege  and  consideration  which  the  law  will  allow  them, 
in  the  character  of  owners,  to  extend  to  them,"'  is  not  void  under  the 
third  section  of  the  Act  of  1841.      Ford  vs.  Porter 23S 

'\.  A  bequest  of  money  to  the  same  four  legatees  "and  the  survivors  and 
survivor  of  them,"  "  to  enable  them  to  support  the  said  slaves,  when 
they,  from  age  o.r  sickness,  may  become  chargeable  upon  them,"  is  not 
void  under  the  fourth  section  of  the  Act  of  1841 lb. 

-  J  In  1S54  E.  W.  executed  his  will,  by  which  he  directed  his  executors  to 
take  his  slaves  Amy  and  her  seven  children  to  Ohio,  and  there  emanci- 
pate them  ;  and  the  rest  of  his  estate,  real  and  personal,  he  devised  and 
bequeathed  to  his  executors  in  trust,  for  Amy  and  her  children.  In  1855, 
E.  \V.  left  this  State  for  Ohio,  taking  with  him  Amy  and  her  children,  and 
intending  to  emancipate  them  there  himself  He  arrived  at  a  wharf  in 
Cincinnati,  and,  in  a  few  minutes  after  landing,  died  betwixt  the  landing 
and  the  hack  in  which  he  was  about  to  proceed  with  said  negroes  to  his 
lodgings  :  Held,  that  by  the  act  of  E.  W.  in  taking  Amy  and  her  chil- 
dren to  Ohio,  with  a  view  to  emancipate  them,  they  became  ipso  facto 
free,  and,  therefore,  that  the  trusts  of  the  will  in  their  favor  were  valid, 
Willis  vs.  Jolliffe 447 

5.  There  is  nothing  in  the  policy  of  the  laws  of  this  State  against  a  master's 

taking  his  slaves  to  a  free  State,  and  there  emancipating  them  himself  . .     lb. 

SPECIFIC  PERFORMANCE, 
1.  A  and  B  agreed  as  follows:  A  agreed  to  make  title  to  B  for  a  certain 
plantation,  and  to  pay  him  $2,000,  and  B  agreed  to  make  title  to  A  for 
certain  lots  in  Charleston,  and  each  bound  himself,  in  case  of  his  refu- 
sal or  failure  to  comply,  to  pay  to  the  other  "$1,0C0,  with  all  costs  and 
charges,  as  damages  sustained  for  non-compliance  on  his  part."  A  de- 
livered possession  of  the  plantation  to  B,  and  tendered  him  the  $2,000 
and  interest.  B  retained  possession  of  the  plantation,  and  refused  to 
comply  with  his  part  of  the  agreement :  Held,  that  notwithstanding  the 
agreement  to  pay  $2,000  as  damages,  A  was  entitled  to  a  decree  for 
specific  performance  of  the  agreement,     Moorer  vs,  Kojmmn 225 

SOLICITOR, 
i.   A  solicitor  who  has  an  interest  in  attending  to  a  cause,  cannot,  it  seems, 
charge  for  his  services,  there  being  no  express  agreement  to  pay.     Mar- 
tin vs.  Campbell 205 


INDEX.  51)7 

SURETY. 
Vule  Joint  Tetiaitta.  I. 

TESTAMENTARY  PAPER. 

1.  A  paper  writing  by  <t  mother,  saying,  'I  wish  all  I  possess  in  this  world 
to  belong  to  my  dear  son  W.,  and  his  heirs  forever,  both  personal  and 
real;  and  everything  in  my  press  and  wardrobe  to  my  dear  sister  M., 
and  to  take  all  she  wishes  of  my  things  ;  my  diamond  ring  and  little 
watch  to  K. ;  my  large  M'ateh  (that  was  my  dear  son's)  to  my  grandson 
J."  Held  to  be  testamentary  and  void,  for  want  of  attestation,  llees  vs. 
Rees b6 

TRUSTS  AND  TRUSTEES. 

1.  II.  being  attorney  on   record  in   a  jndgment,  of  which  ho  owned  one  half, 

purchased,  at  sheriff's  sale,  a  tract  of  land,  sold  under  the  execution  on 
the  judgment,  and  without  paying  the  purchase  money,  received  from  the 
sheriff'  a  deed  oi  conveyance  for  the  land  :  Held,  that  H.  must  be  pre 
sumed  to  have  purchased  as  trustee,  and  that  he  held  the  land  as  equit- 
able tenant  in  common  with  the  other  owners  of  the  judgment.  Smith 
vs.  Hunt 2(i0 

2.  Lapse  of  time,  more  ilian  twenty  years  :  Held,  under  the  circumstances, 

not  to  rebut  the  presumption  that  H.  had  purchased  as  trustee lb. 

3.  The  land  having  been  sold  by  the  master  and  the  proceeds  being  in  Court: 

Held,  that  the  other  owners  of  the  judgment,  who  had  another  demand 
against  II.,  growing  out  of  a  similar  transaction,  had  the  right,  as  against 
other  creditors  of  H.,  to  look  to  the  proceeds  of  the  sale  as  a  common 
fund  I'or  payment  of  both  of  their  demands /A. 

4.  Where  there  have  been   several  successive  sales  of  slaves  sui>ject  loan 

equity,  it  any  one  of  the  purchases  was  made  for  valuable  consideration 
and  without  notice,  that,  and  all  the  subsequent  purchases,  will  be  good. 
Fretwi  II  vs.  Neal SOO 

Vide  Adraiicemeut$,  Ti.     Frauds,  Statute  of.     Piaetice.     Slaves. 

USURY. 

1.  Where  the  obligor  ul'  a   bond,  when  about   to  reissue  il  for  the  purpose  of 

raising  money,  rcpre.>ented  to  the  new  lender  that  the  bond  would  be 
punctually  paid  at  the  end  of  the  year:  Held,  that  such  representation 
did  not  preclude  the  obligor  from  setting  up  the  defence  of  usury.  Mar- 
tin vs.  Petit 410 

2.  Where  a  bond  was  originally   negotiated   at   a  ustirious.  and  then   taken 

up  and  renegotiated  at  a  less  usurious  interest,  to  another  lemler,  ignor- 
ant of  the  original  usury:  Held,  that  the  obligor  could  not  be  compelled 
to  pay  to  the  new  lender  more  llinn  the  amount  he  received  when  he 
first  negotiated  the  bond /6. 


598  INDEX. 

VENDOR'S  LIEN. 

1.  The  doctrine  that  the  vendor  1ms  an  equitable  lien  for  the  purchase 
money  of  land  sold,  has  never,  it  seems,  prevailed  in  this  State.  McCor- 
kle  vs.  Montgomery 114 

WILLS  AND  TESTAMENTS. 

1.  The  testator  devised  and  bequeathed  his  estate,  real  and  personal,  to  his 

executors,  in  trust,  lor  the  sole  and  separate  use  of  his  two  daughters, 
each  to  take  one  half  for  life,  u'ith  remainder  to  her  issue,  and  should 
one  die  without  leaving  issue  her  surviving,  then  her  share  to  the  sur- 
viving daughter  for  life  with  remainder  to  her  issue;  ''but  in  the  event 
that  both  of  my  daughters  should  die  without  leaving  issue  surviving, 
then  and  in  that  case,"  he  devised  and  bequeathed  his  whole  estate, 
real  and  personal,  after  some  inconsiderable  pecuniary  legacies,  to  his 
brothers  and  sisters.  The  two  daughters  both  died  unmarried  and  with- 
out issue  :  Held,  that  the  limitation  to  the  brothers  and  sisters  of  the 
testator  was  valid.     Gillam  vs.  Caldwell 73 

2.  The  will  containing  no  provision  for  the  payment  of  debts:  HeZ«?,  that  they 

were  chargeable  on  the  corpus  of  the  estate,  and  not  exclusively  on  the 
income  to  which  the  daughters,  as  tenants  for  life,  were  entitled Ih. 

3.  Where  a  testator  gives  no  direction  as  to  the  fund  out  of  which  his  debts 

should  be  paid,  they  are,  as  between  tenant  for  life  and  remaindermen 
of  the  estate,  chargeable  not  upon  the  incon)e,  but  upon  the  corpus  of 
the  estate  as  it  existed  at  the  death  of  the  testator    lb. 

4.  Testator,  being  the  owner  of  two  large  estates,  each  embracing  real  and 

personal  property,  made  disposition  of  the  greater  part  of  one  estate  in 
the  first  part  of  his  will,  and  in  a  subsequent  part,  relating  to  the  "  dis- 
posal "of  the  other  estate,  directed  his  executors  to  sell  *' the  whole 
estate,"  and  then  proceeded  to  dispose  of  the  proceeds  of  the  sale  : 
Held,  that  the  direction  to  sell  related  only  to  the  estate  mentioned  in 
that  part  of  the  will,  and  did  not  embrace  some  portions  of  the  other 
estate,  which  the  will  did  not  dispose  of".  American  Bible  Society  vs. 
Noble 156 

Jj.  Where  a  testator  owned  a  large  real  and  personal  estate,  which  he  had 
inherited  from  a  deceased  brother,  and  to  which  he  had  added  a  large 
tract  of  land,  purchased  with  the  proceeds  of  the  crops  of  that  estate: 
Held,  that  his  devise  "of  the  estate  of  my  respected  and  greatly  lament- 
ed brother,"  embraced  as  well  the  estate  he  had  inherited  as  the  land  he 
had  purchased lb. 

6.  A  bequest  of  a  negro  woman  "  and  her  descendants,"  will  include  all  her 
issue  born  before  or  after  the  date  of  the  will;  so,  also,  a  bequest  of  a 
negro  woman  '•  and  her  children,"  will  include  all  the  children  ;  but  a 
bequest  of  a  negro  woman  simply  by  name,  will  not  include  her  chil- 
dren born  before  the  death  of  the  testator Ih. 

1.  Testator  directed  a  sum  of  money  to  be  placed  at  interest  in  a  bank, 
"  whi'ch  sum,  when  thus  placed,  I  do  hereby  cheerfully  give  to  J.  M. 
And  do  hereby  so   settle  it,  that  no  person   or  persons  whatever,  under 


INDEX.  599 

any  circumstances  or  pretext  whntever,  can  deprive  hini  of  it  during  his 
naturnl  life.  That  J.  M.,  himself,  shall  not  he  allowed  to  touch,  or  use, 
or  squander  one  cent  of  the  principal,  but  only  to  draw  and  make  use 
of  the  lawful  interest  annually,  as  may  seem  to  him  best:"  Held,  that 
J.  M.  look  an  absolute  interest  in  the  money,  with  right  to  dispose  of  it 
as  he  pleased Ih. 

S.  Where  there  is  no  charge  of  insolvency  or  misconduct  against  an  execu- 
tor, the  Court  will  not  deprive  him  of  the  privilege,  which  the  will  gives 
him,  of  selling  lands,  and  direct  the  sale  to  be  made  by  the  commission- 
er       //). 

9.  A  devise  of  lands,  to  be  sold  by  the  executors,  with  directions  to  distrib- 

ute the  proceeds  among  certain  religious  corporations,  is  a  devise  of 
personalty,  and  is  not  prohibited  by  the  Act  of  1733  (3  Stat.,  311), 
excepting  corporations  from  the  objects  of  the  devises  of  land ///. 

10.  Testator  directed  "first,  that  all  my  just  debts  be  paid  and  discharged; 

and,  secondly,  that  the  remainder  of  my  property  be  disposed  of  as  fol- 
lows." He  then  devised  all  his  "lands  on  the  Round  O,  known  as  the 
Ash  Hill  plantation,"  to  his  son,  '"to  be  valued  by  three  disinterested 
persons,  and  to  be  received  by  him  at  said  valuation,  as  so  much  of  his 
share  of  my  estate:"  directed  that  his  daughter  should  "receive  in 
negroes,  the  amount  of  the  valuation  of  the  land  given  to  my  son;"  and, 
after  providing  for  other  children  to  be  born,  should  there  be  any, 
bequeathed  the  remainder  of  his  personal  property  to  his  wife : — Held, 
that  there  was  no  equital)le  conversion  of  the  lands  into  personalty,  and 
that  as  between  the  devisee  and  legatees  tlie  personal  estate  should 
be  exhausted  in  payment  of  debts  before  resort  could  be  had  to  the 
real  estate  devised.     Farmer  vs.  Spell 01 1 

11.  The  Act  of  1789,  ?  9,  5  Stat.,  107,  was  intended  to  provide  for  the  case  of 

a  lapse  by  the  death  of  a  child,  after  the  execution  of  the  will  o(  the 
father  or  mother.  The  Act  does  not  apply  where  the  child  was  dead 
when  the  will  was  executed.     Pegites  vs.  Pcgues S.')! 

Vide  Executors  and  Administrators,  4,  5.      Limitation  oj  Estates,  1.     Slaves, 
2,  3,  4.  Testamentary  Paper. 


H 


«.       i,^ 


